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As filed with the Securities and Exchange Commission on September 8, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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RTI INTERNATIONAL METALS, INC.
(Exact name of registrant as specified in its charter)
Ohio 52-2115953
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1000 Warren Avenue
Niles, Ohio 44446
(330) 544-7622
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
Timothy G. Rupert
President & Chief Executive Officer
RTI International Metals, Inc.
1000 Warren Avenue
Niles, Ohio 44446
(330) 544-7622
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
Richard D. Rose, Esquire Dawne S. Hickton, Esquire
Doepken Keevican & Weiss, P.C. Vice President and General Counsel
58th Floor, USX Tower RTI International Metals, Inc.
600 Grant Street 1000 Warren Avenue
Pittsburgh, PA 15219 Niles, Ohio 44446
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Approximate date of commencement of the proposed sale of the securities to the
public:
From time to time after the effective date of this Registration Statement.
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If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are being 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. [ ]
The registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
Proposed
Proposed Maximum
Maximum Aggregate
Title of Each Class of Amount to be Offering Price Offering Amount of
Securities to be Registered Registered (1) (2) Per Unit (2) Price (1) Registration Fee
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities,
Preferred Stock $0.01
par value, Common
Stock, $0.01 par
value (3), Warrants
to Purchase Debt
Securities, Warrants to
Purchase Equity
Securities (4)................. ___ ___ $100,000,000 $27,800
- ----------------------------------------------------------------------------------------------------
Capital Securities.............. (4) (4) (4) None
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
</TABLE>
(1) In no event will the aggregate initial offering price of the Debt
Securities, Preferred Stock, Common Stock, Warrants to Purchase Debt
Securities and Warrants to Purchase Equity Securities issued under this
Registration Statement exceed $100,000,000 or, if any securities are in any
foreign currency units,
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the U.S. dollar equivalent of $100,000,000, and if any securities are
issued at original issue discount, such greater amount as shall result in
an aggregate offering price not to exceed $100,000,000.
(2) Not applicable pursuant to General Instruction II D to Form S-3 and Rule
457(o).
(3) The aggregate amount of Common Stock registered hereunder is limited to
that which is permissible under Rule 415(a)(4) of the Securities Act.
(4) In addition to any Preferred Stock or Common Stock that may be issued
directly under this Registration Statement, there are being registered
hereunder an indeterminate number of shares of Preferred Stock or Common
Stock as may be issued upon conversion or exchange of Debt Securities or
Preferred Stock, as the case may be. No separate consideration will be
received for any shares of Preferred Stock or Common Stock so issued upon
conversion or exchange.
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The information in this prospectus is not complete and may be changed. We may
not sell these securities until our registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
Prospectus, Subject to Completion, Dated September 8, 1999
RTI International Metals, Inc.
1000 Warren Avenue
Niles, Ohio 44446
(330) 544-7622
$100,000,000
Debt Securities
Preferred Stock
Common Stock
Warrants to Purchase Debt Securities
Warrants to Purchase Equity Securities
You should read this prospectus and any supplement carefully before you
invest.
This prospectus describes debt and equity securities that we may issue and
sell at various times:
. our prospectus supplements will contain the specific terms of
each issuance of debt or equity securities.
. we can issue debt and equity securities with a total offering
price of up to $100,000,000 under this prospectus.
. we may sell the debt and equity securities to or through
underwriters, dealers or agents. We also may sell debt and equity
securities directly to investors.
Our common shares are listed on the New York Stock Exchange under the
trading symbol "RTI." The closing price of our common stock on September 7,
1999, was $10.1875 per share. We will not sell any of the securities being
offered without delivery of the applicable prospectus supplement describing the
method and terms of the offering of such series of securities being offered.
Any common stock sold pursuant to a prospectus supplement will be listed on the
New York Stock Exchange, subject to official notice of issuance.
This investment involves risks. See "Risk Factors" beginning on page 4.
Neither the Securities and Exchange Commission nor any state securities
regulators has approved or disapproved of these securities, or determined if
this prospectus is truthful or complete. Any representation to the contrary is
a criminal offense.
This Prospectus is dated , 1999.
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Commission using a "shelf" registration process. Under this shelf registration
process, we may sell any combination of the debt and equity securities described
in this prospectus in one or more offerings for total proceeds of up to
$100,000,000. This prospectus provides you with a general description of the
securities we may offer. Each time we sell securities, we will provide a
prospectus supplement that will contain specific information about the terms of
that offering. The prospectus supplement may add, update or change information
contained in this prospectus. It is important for you to consider the
information contained in this prospectus and any prospectus supplement together
with additional information described under the following sections titled "Where
You Can Find More Information" and "Incorporation of Certain Documents by
Reference".
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational requirements of the Securities Exchange
Act of 1934, so we file reports, proxy statements and other information with the
Securities and Exchange Commission. You can read, inspect and copy these
documents at the public reference facilities maintained by the Commission at the
following locations.
. Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549;
. 7 World Trade Center, New York, New York 10048; and
. Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60606.
Please call the Commission at 1-800-SEC-0330 for further information about
its public reference rooms, including copy charges. The Commission maintains an
Internet site that contains material filed electronically by us with the
Commission which you can access at http://www.sec.gov. Materials can also be
inspected at the offices of the New York Stock Exchange, 20 Broad Street, New
York, New York 10005, which is the stock exchange on which our common stock is
listed.
We have filed with the Commission a registration statement under the
Securities Act of 1933 for the Securities offered by this prospectus. The
prospectus includes all material information relating to the offering, but omits
some of the information contained in the registration statement. Additional
information concerning documents mentioned in this prospectus can also be found
in the exhibits to the registration statement. The registration statement and
the exhibits may be inspected without charge at the Commission's Washington,
D.C. reference facility and copies may be obtained from the Commission at
prescribed rates.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Commission allows us to "incorporate by reference" the information we
file with it, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and information that we file later
with the Commission will automatically update and supersede this information.
We incorporate by reference the following documents:
. Our Annual Report on Form 10-K for the year ended December 31, 1998,
as amended by Form 10-K/A filed June 30, 1999;
. Our Quarterly Report on Form 10-Q for the quarter ended March 31, 1999
filed May 14, 1999;
. Our Quarterly Report on Form 10-Q for the quarter ended June 30, 1999
filed August 16, 1999;
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. All other reports filed by us under Section 13(a) or 15(d) of the
Exchange Act since December 31, 1998;
. The description of the common stock contained in our Registration
Statement on Form 8-A12B (Registration No. 1-14437) dated August 21,
1998, including any reports updating the description;
. All documents filed by us with the Commission subsequent to the date
of this prospectus under Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act and prior to the termination of the offering of the
shares covered by this prospectus; and
. All of our filings under the Exchange Act after the date of the
initial registration statement and prior to effectiveness of the
registration statement.
You can get a free copy of any of the documents incorporated by reference,
except for the exhibits to the documents unless the exhibits are themselves
incorporated by reference. Call or write Richard Leone, Manager of Investor
Relations, RTI International Metals, Inc., 1000 Warren Avenue, Niles, Ohio
44446-7701 (telephone number 330-544-7622).
You should rely only on the information contained in, or incorporated by
reference into, this prospectus or any applicable prospectus supplement. We
have not authorized anyone to provide you with additional or different
information. You should not assume that the information in this prospectus, any
prospectus supplement, or any document incorporated by reference is accurate as
of any date other than the date of those documents.
You may also obtain from the Commission a copy of the registration
statement and exhibits that we filed with the Commission when we registered the
debt and equity securities. The registration statement may contain additional
information that may be important to you.
CERTAIN FORWARD-LOOKING STATEMENTS
We make statements in this prospectus and the documents incorporated by
reference that are considered forward-looking statements under the federal
securities laws. Sometimes these statements will contain words such as
"believes," "expects," "intends," "plans," and other similar words. These
statements are not guarantees of our future performance and are subject to
risks, uncertainties and other important factors that could cause our actual
performance or achievements to be materially different from those we may
project. These forward-looking statements also represent our estimates and
assumptions only as of the date they were made.
In addition to the risks described in any documents incorporated by
reference or under "Risk Factors" below, these risks, uncertainties and factors
include:
. changes in global economic and business conditions (including in the
aerospace markets);
. our ability to recover our raw material costs in the pricing of our
products;
. the availability of capital on acceptable terms;
. actions of our competitors;
. the extent to which we are able to develop new markets for our
products;
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. the time required for development of the new markets for our products
and the level of demand for those products; and
. changes in our business strategies.
Given these uncertainties, you should not place undo reliance on these
forward-looking statements. Please see the documents incorporated by reference
for more information regarding these factors.
RISK FACTORS
You should consider the following factors before you invest in our
securities.
The Work Stoppage at Our Niles, Ohio Plant from October 1, 1998 Through April
12, 1999 Adversely Affected this Year's Earnings.
Our primary subsidiary, RMI Titanium Company, experienced a work stoppage
at its Niles, Ohio plant from October 1, 1998 through April 12, 1999. We
broadly estimate that our fourth quarter results for 1998 sales were adversely
impacted by $15 million to $25 million due to the strike. We estimate that the
work stoppage reduced first quarter 1999 earnings by approximately $1.0 million
to $2.5 million per month. First quarter 1999 net income was therefore reduced
by approximately $3.0 million to $7.5 million in the aggregate. Because of the
time required to complete an orderly recall of production and maintenance
workers, a resumption to normal plant operating levels was not completed until
mid-second quarter of 1999. This delay had a negative impact on second quarter
1999 earnings in the amount of approximately $1 million.
Our Dependence on Cyclical Aerospace Markets Could Adversely Affect Earnings in
the Current Year.
We are largely dependent on the aerospace industry, and our performance
could be impacted by the cyclical nature of that industry. Accordingly, if the
titanium industry experiences an extended downturn, we may require additional
capital to maintain our operations and competitive position and no assurance can
be given that we will have access to capital when required. As of December 31,
1998, the leading manufacturers of commercial aircraft reported an aggregate of
3,095 planes under final order and deliverable over the next five years. The
comparable backlogs as of December 31, 1997 and 1996 were 2,753 planes and 2,370
planes, respectively. Boeing has, however, recently announced reductions in
forecasted production rates in the 1999-2000 time frame which could impact the
overall demand for titanium products in the near term.
Our total order backlog was approximately $226 million at June 30, 1999
compared to $303 million at December 31, 1998. The reduced backlog is primarily
the result of the softening of demand by the commercial aerospace industry. Our
results of operations and financial condition will be adversely affected if
demand continues to decline.
We May Remain Dependent on the Cyclical Aerospace Industry Because We May Not Be
Able to Successfully Develop New Markets.
In an effort to reduce our dependence on the aerospace market and to
increase our participation in other markets, we have been devoting significant
resources to developing new markets and applications for our products,
principally in the oil and gas and geothermal energy production industries. We
cannot give any assurances as to the extent to which we will be able to develop
new markets for our products, the time required for development, or the level of
demand for these products. Failure to develop these new markets would result in
our continued dependence on the cyclical aerospace industry and our operating
results would, accordingly, be cyclical.
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Our Access to Capital Could Be Impaired If We Are Unable to Comply with Certain
Required Financial Ratios Contained in Our Credit Agreement Because of an
Extended Downturn by the Titanium Industry.
Our credit agreement contains covenants requiring, among other things, that
we maintain a minimum ratio of consolidated earnings before interest and taxes
to consolidated interest expense and a minimum consolidated net worth. If we
are unable to comply with these covenants, any borrowings under the credit
agreement could become due and our ability to obtain capital could be impaired.
Our Raw Material Supplies and Conversion Services Could Be Interrupted Which
Would Affect Our Ability to Produce Titanium Mill Products.
We are dependent on third parties for titanium sponge, the basic raw
material of titanium, our primary product, and if our ability to purchase
sufficient quantities of sponge is disrupted for any reason it could have a
material adverse affect upon our ability to produce titanium mill products and
thus our sales and earnings. We are also dependent upon the services of outside
converters to perform important conversion services on our products. An
interruption of these functions could also have an adverse affect on our ability
to produce titanium mill products and thus our business in the short term.
We May Be Responsible for Material Environmental Clean up Costs.
We are involved in investigative or cleanup projects under federal or state
environmental laws at a number of waste disposal sites, including a Superfund
site. We can give no assurance that additional environmental investigation or
remediation obligations at other locations will not be asserted against us or
entities for which we may be responsible, whether by contract or by operation of
law. At June 30, 1999, the amount accrued for future environmental related
costs was $3.5 million. We believe that our share of potential environmental-
related costs, before expected contribution from third parties, is in the range
of $4.2 million to $7.0 million in the aggregate. The amount accrued is net of
expected and possible contributions from third parties, not including amounts
from insurers, of approximately $2.1 million. We cannot quantify the impact of
potential liabilities which are not asserted.
Russian Titanium Products Could Be Priced Favorably in Comparison to Our
Products and Sales Could Adversely Affect Us.
A Russian titanium producer has the largest rated capacity in the world,
although we believe practical capacity is substantially less. Wrought products
produced by this firm, including plate, sheet, and pipe, are entitled to
favorable tariff treatment, as compared to unwrought products, such as titanium
sponge. This could allow Russian wrought products to be priced favorably
compared to those produced by us, while preventing us from purchasing Russian
titanium sponge on favorable terms.
A Significant Portion of Our Common Stock Will Be Distributed to Certain Note
Holders on February 1, 2000.
On March 31, 1999, our largest stockholder, USX Corporation, terminated its
ownership interest in RTI by irrevocably depositing the 5,483,600 of our shares
it owned with Chase Manhattan Trust Company, N.A. The shares constitute
approximately 27% of our outstanding shares. Chase Manhattan is the trustee of
a note indenture under which USX issued 6 3/4% exchangeable notes due February
1, 2000. All of those notes are still outstanding. At maturity, each note is
mandatorily exchangeable for a number of our shares of common stock on a
variable basis up to one share per note depending on the market price of our
common stock at maturity. We do not believe that any of the note holders will
exercise control over us as a result of the distribution.
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Our Articles of Incorporation and Code of Regulations Contain Anti-takeover
Provisions Which Are Intended to Encourage Potential Suitors to Negotiate With
Our Board So As to Maximize Value But Which Could Discourage Acquisitions,
Dilute Shareholders and Adversely Affect the Price of RTI Stock.
Our Articles of Incorporation and Code of Regulations contain provisions
which may have the effect of discouraging or impeding a tender offer, proxy
contest or similar transaction involving control of RTI, including transactions
in which our stockholders might otherwise receive a premium for their shares
above then-current market prices or other transactions they may deem to be in
their best interests.
Specifically:
1. We currently have in place a preferred share purchase rights plan
which may be triggered upon the acquisition of 20% or more of our
common stock under certain circumstances. The rights plan has the
effect of discouraging entities from making an unsolicited attempt to
gain control of RTI due to the possibility that their unsolicited
investment will be heavily diluted upon the triggering of the rights
plan. See "Description of Common Stock - Preferred Stock Purchase
Rights" on Page 16 for additional details regarding our rights plan.
2. Our Articles of Incorporation require the approval of at least two-
thirds of our capital stockholders to approve a merger or
consolidation where a vote by our stockholders is required under Ohio
law.
3. Our Code of Regulations permits a special meeting of shareholders to
be called by a shareholder or shareholders only if they hold at least
50% of the shares of stock entitled to vote.
4. Our Code of Regulations provides that a director may only be removed
for cause.
THE COMPANY
RTI was incorporated in 1998 under the laws of Ohio. Until September 30,
1998, our corporate structure was consolidated within our operating company, RMI
Titanium Company. On September 30, 1998, RTI became a holding company with RMI
as its principal subsidiary. Prior to that date, our filings with the
Commission were made under the name of RMI. At June 30, 1999, we had total
assets of approximately $404 million and total shareholders' equity of
approximately $297 million.
In 1998 we also acquired New Century Metals, Inc. and formed RTI Energy
Systems, Inc., which are also principal subsidiaries of RTI. Our subsidiaries:
. produce and fabricate titanium;
. distribute titanium and other corrosion resistant alloys to the
aerospace, chemical processing, oil and power generation industries;
and
. provide engineering and fabrication services for the oil and gas
industry, including weld design and repair services, and materials
engineering and testing services.
Our principal executive offices are located at 1000 Warren Avenue,
Niles, Ohio 44446 and our telephone number is: (330) 544-7622.
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USE OF PROCEEDS
Unless otherwise indicated in the applicable prospectus supplement, we
intend to use the net proceeds from the sale of the securities offered thereby
for general corporate purposes which may include:
. repaying outstanding long-term indebtedness and other financial
obligations;
. managing our interest rate;
. leveling of our debt maturity schedule;
. financing and refinancing acquisitions, purchases of common stock
(including, perhaps repurchasing our own securities), capital
expenditures, and investments in subsidiaries and joint ventures; and
. providing working capital.
We may temporarily invest the net proceeds we receive from any offering of
securities or use the net proceeds to repay short-term debt until we can use
them for their stated purposes.
DESCRIPTION OF DEBT SECURITIES
As used in this prospectus, "debt securities" means the senior and
subordinated debentures, notes, bonds and other evidences of indebtedness that
we issue and a trustee authenticates and delivers under the applicable
indenture. We will describe the particular terms of any series of debt
securities, and the extent to which the general terms summarized below may
apply, in the prospectus supplement relating to that series.
The debt securities will be issued under an indenture between us and a
trustee we choose. We have initially identified The First National Bank of
Chicago as our trustee. We intend to use and have agreed upon the form of
indenture with The First National Bank of Chicago. The following description
highlights several terms and provisions of the debt securities. The summary is
not complete, when we offer debt securities the prospectus supplement will
explain the particular terms of those securities and the extent to which these
general provisions may apply.
The form of the indenture has been filed as an exhibit to the registration
statement.
If we use another trustee or another indenture for a series of debt
securities, we will provide the details in a prospectus supplement. We will
file the forms of any other indentures with the Commission at the time we use
them.
Terms. The indenture provides for the issuance of debt securities in one
or more series. A prospectus supplement relating to a series of debt securities
will include specific terms relating to the offering. These terms will include
some or all of the following:
. the title and type of the debt securities;
. whether the debt securities will be senior or subordinated debt
securities and the terms of the subordination provisions;
. any limit on the total principal amount of the debt securities;
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. the person who will receive interest payments on any debt securities
if other than the registered holder;
. the price or prices at which we will sell the debt securities;
. the maturity date or dates of the debt securities;
. the rate or rates, which may be fixed or variable, per annum at which
the debt securities will bear interest and the date from which such
interest will accrue;
. the dates on which interest will be payable and the related record
dates;
. whether any index, formula or other method will determine payments of
principal or interest and the manner of determining the amount of such
payments;
. the place or places of payments on the debt securities; whether the
debt securities are redeemable;
. any redemption dates, prices, obligations and restrictions on the debt
securities;
. any mandatory or optional sinking fund or purchase fund or analogous
provisions;
. the denominations of the debt securities if other than $1,000 or
multiples of $1,000;
. the currency of principal and interest payments if other than U.S.
Dollars;
. any provisions granting special rights if certain events happen;
. any deletions from, changes in or additions to the events of default
or the covenants specified in the indenture;
. any trustees, authenticating or paying agents, transfer agents,
registrars or other agents for the debt securities;
. any conversion or exchange features of the debt securities;
. whether we will issue the debt securities as original issue discount
securities for federal income tax purposes;
. any special tax implications of the debt securities;
. the terms of payment upon acceleration; and
. any other material terms of the debt securities.
We may issue debt securities that are convertible into or exchangeable for
our common stock or other securities, or the debt or equity of another company.
If we issue these types of debt securities, we will provide additional
information in a prospectus supplement.
We may sell debt securities at a discount below their stated principal
amount, bearing no interest or interest at a rate that, at the time of issuance,
is different than market rates. When we refer to the principal and
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interest on debt securities, we also mean the payment of any additional amounts
that we must pay under the indenture or the debt securities, including amounts
for certain taxes, assessments or other governmental charges which holders of
debt securities must pay.
Denomination, Form, Payment and Transfer. Normally, we will denominate and
make payments on debt securities in U.S. dollars. If we issue debt securities
denominated, or with payments, in a foreign or composite currency, a prospectus
supplement will specify the currency or composite currency.
We may from time to time issue debt securities as registered securities.
This means that holders will be entitled to receive certificates representing
the debt securities registered in their name. You can transfer or exchange debt
securities in registered form without service charge, upon reimbursement of any
taxes or government charges. You can make this transfer or exchange at the
trustee's corporate trust office or at any other office we maintain for such
purposes. If the debt securities are in registered form, we can pay interest by
check mailed to the person in whose name the debt securities are registered on
the days specified in the indenture.
As a general rule, however, we will issue debt securities in book-entry
form. This means that one or more permanent global certificates registered in
the name of a depositary, or a nominee of the depositary, will represent the
debt securities. Only persons who have accounts with depositaries, which are
known as participants, or persons that may hold interests through participants,
can have beneficial ownership interests in global certificates representing a
series of debt securities. The depositary will maintain a computerized book
entry and transfer system that keeps track of the principal amounts of debt
securities held in the accounts of participants. Participants keep records of
the interests of their clients who have purchased debt securities through them.
Beneficial ownership interests in debt securities issued in book-entry form may
be shown only on, and may be transferred only through, records maintained by the
depositary and its participants. Some states require that certain purchasers
receive securities only in certificate form. These state laws may limit the
ability of beneficial owners to transfer their interests.
The Depositary Trust Company, or DTC, frequently acts as the depositary for
debt securities. DTC is owned by a number of its participants and by the NYSE,
AMEX and the NASD. The information below regarding DTC, which DTC provides, is
included for informational purposes only. You should not treat it as a
representation, warranty or contract modification of any kind. If we issue the
debt securities of any series in book-entry form and the depositary is someone
other than DTC, we will provide you with additional information in a prospectus
supplement.
DTC holds securities that its participants deposit. Participants include
securities brokers and dealers, banks, trust companies, clearing corporations
and other organizations. DTC's book-entry system is also available to other
organizations such as securities brokers and dealers, banks and trust companies
that work through a participant. DTC electronically records the settlement
among participants of their securities transactions in deposited securities.
Issuers make interest and principal payments to DTC, which in turn credits
payments to participants' accounts according to their beneficial ownership
interests as reflected in DTC's records. In addition, DTC currently assigns any
voting rights to participants by using an omnibus proxy. These payments and
voting rights are governed by the customary practices between the participants
and holders of beneficial interests.
DTC will be the sole owner of the global certificates. We, the trustee and
the paying agent have no responsibility or liability for the records relating to
beneficial ownership interests in the global certificates or for the payments of
principal and interest due for the accounts of beneficial holders of interest in
the global certificates. The global certificates representing a series of debt
securities normally may not be transferred except by DTC to its nominees or
successors in accordance with the indenture. A series of debt securities
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represented by global certificates will be exchangeable for debt securities in
registered form with the same terms in authorized denominations if:
. DTC notifies us that it is unwilling or unable to continue as
depositary or if DTC ceases to be a clearing agency registered under
applicable law and we do not appoint a successor depositary within 90
days; or
. we decide not to require all of the debt securities of a series to be
represented by global certificates and notify the trustee of that
decision.
Events of Default. Unless we indicate otherwise in a prospectus
supplement, the following are events of default under the indenture with respect
to any issued debt securities:
. failure for 30 days to pay interest on any debt security of that
series when due;
. failure to pay the principal or any premium on any debt security of
that series when due;
. failure to deposit any sinking fund payment on any debt security of
that series when due;
. failure to perform any other covenant in the indenture that continues
for 90 days after we have been given written notice of such failure;
or
. certain events of bankruptcy, insolvency or reorganization.
An event of default for one series of debt securities does not necessarily
constitute an event of default for any other series. The trustee may withhold
notice to the debt securities holders of any default, except a payment default,
if it considers such action to be in the holders' interests.
If an event of default occurs and continues, the trustee, or the holders of
at least 25% in aggregate principal amount of the debt securities of the series,
may declare the entire principal of all the debt securities of that series to be
due and payable immediately. If this happens, subject to certain conditions,
the holders of a majority of the aggregate principal amount of the debt
securities of that series can void the acceleration of payment.
Subordination. The subordinated debt securities will be subordinated and
junior in right of payment to all our senior indebtedness to the extent set
forth in the applicable prospectus supplement.
Conversion Rights. We will describe the terms upon which debt securities
may be convertible into our common stock or other securities in a prospectus
supplement. These terms will include provisions as to whether conversion is
mandatory or optional. They may also include provisions adjusting the number of
shares of our common stock or other securities.
Certain Covenants. Unless we undertake otherwise in a prospectus
supplement, under the indenture, we will agree to the following:
Limitations on Liens. The indenture will restrict our ability and the
ability of certain of our subsidiaries to encumber assets.
This restriction will not apply in certain situations. We may encumber
assets if the encumbrance is a permitted lien, as defined below, without regard
to the amount of debt secured by the encumbrance. We may
10
<PAGE>
also encumber assets if the amount of all debt secured by encumbrances (other
than certain permitted encumbrances) does not exceed $50,000,000. Permitted
liens include:
. certain statutory liens;
. liens on a corporation's property, stock or debt at the time it
becomes our restricted subsidiary (a restricted subsidiary is our
subsidiary that has substantially all of its assets located in, or
carries on, substantially all of its business in, the United States);
. liens on property at the time we or a restricted subsidiary acquires
the property;
. liens securing debt owing by a restricted subsidiary to us or another
restricted subsidiary;
. liens existing at the time the indenture became effective;
. liens on property of an entity at the time such entity is merged into
or consolidated with us or a restricted subsidiary or at the time we
or a restricted subsidiary acquire all or substantially all of the
assets of the entity;
. liens in favor of any governmental customer to secure payments or
performance pursuant to any contract or statute, or to secure
indebtedness we incur with respect to the acquisition or construction
of the property subject to the liens, any related indebtedness, or
debt guaranteed by a government or governmental authority; and
. any renewal, extension or replacement for any lien permitted by one of
the exceptions described above.
Limitations on Sale-Leaseback Arrangements. Except in certain
circumstances, the indenture also will restrict our ability and the ability of
certain of our subsidiaries to enter into sale-leaseback transactions. Such an
arrangement is permissible if we or our restricted subsidiary would be permitted
to incur indebtedness secured by a principal property at least equal in amount
to the attributable debt with respect to such arrangement. Sale-leaseback
transaction means, subject to certain exceptions, an arrangement pursuant to
which we, or a restricted subsidiary, transfer a principal property to a person
and contemporaneously lease it back from that person. Principal property means,
with certain exceptions, any manufacturing plant or facility located in the
United States which we or one or more of our restricted subsidiaries owns,
except any plant or facility which our board of directors determines is not of
material importance to our total business. Attributable debt for a sale-
leaseback transaction means the lesser of the fair value of such property as
determined by our board of directors or the present value of the obligation of
the lessee for net rental payments during the remaining term of the lease.
The applicable indenture will not otherwise limit our ability to incur
additional debt, unless we tell you this in a prospectus supplement.
Consolidation, Merger or Sale. Unless we indicate otherwise in a
prospectus supplement, we may neither consolidate with nor merge into another
corporation nor transfer all or substantially all of our assets to another
corporation unless we will be the successor corporation in the case of a merger
or:
. the successor corporation assumes all of our obligations under the
debt securities and the indenture;
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<PAGE>
. immediately following the transaction, no event of default and no
circumstances which, after notice or lapse of time or both, would
become an event of default, shall have happened and be continuing; and
. we have delivered to the trustee an officers' certificate and a legal
opinion confirming that we have complied with the indenture.
Change of Control. Unless we indicate otherwise in a prospectus
supplement, if some unrelated person acquires at least 20% of our voting
securities, except:
. a person that acquires such 20% interest solely as a result of a
reduction in the number of shares of voting stock outstanding unless
such person acquires additional voting shares after the reduction;
. a person that our board of directors determines in good faith
acquired the voting shares that resulted in the person crossing the
20% threshold inadvertently and the person divests a sufficient number
of voting shares promptly so that the person no longer owns 20% or
more of our voting stock; or
. a person that acquired the 20% or more of our voting stock with the
approval of our board of directors in connection with an approved
merger, combination or similar transaction,
then, at the option of each holder of the debt securities, we will purchase the
debt securities held by such holder at the price equal to 100% of the principal
amount of the securities together with all accrued interest. Such purchase will
be made within 35 business days after the change of control transaction.
Redemption, Sinking Fund and Defeasance. Unless we indicate otherwise in a
prospectus supplement, we may redeem some or all of the debt securities at our
option, subject to the conditions stated in the applicable prospectus
supplement. If a series of debt securities is subject to a sinking fund, the
prospectus supplement will describe those terms.
The indenture will permit us to discharge or defease certain of our
obligations for any series of debt securities at any time. We may defease a
series of debt securities by depositing with the trustee cash or government
securities sufficient to pay all sums due on that series. Under certain
circumstances, if we defease a series of debt securities, we will no longer have
a legal obligation to pay principal, interest and any premium on that series.
We can defease one series of debt securities without defeasing any other series.
Under U.S. federal income tax law, a discharge of our obligation to pay
principal, interest and any premium on the debt securities would be treated as
an exchange of the debt securities for a new security representing an interest
in the trust. Each holder would have to recognize gain or loss equal to any
difference between the holder's cost or other tax basis for the debt securities
and the value of the holder's interest in the trust. Holders would not have to
recognize gain or loss in the event of a defeasance of certain contractual
obligations without a discharge of our legal obligation to pay principal,
interest and any premium on the debt securities. Prospective investors should
consult their own tax advisers as to the consequences of a discharge, including
the applicability and effect of tax laws other than U.S. federal income tax law.
Changes to the Indenture. Unless we indicate otherwise in a prospectus
supplement, holders who own more than 50% in principal amount of the debt
securities of a series can agree with us to change the provisions of the
indenture relating to that series. However, no change can affect the payment
terms or the
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<PAGE>
percentage required to change other terms without the consent of all holders of
debt securities of the affected series.
We may enter into supplemental indentures for other specified purposes and
to make changes that would not materially adversely affect your interests,
including the creation of any new series of debt securities, without the consent
of any holder of debt securities.
Governing Law. New York law will govern the indentures and the debt
securities.
DESCRIPTION OF PREFERRED STOCK
The following description is a general summary of the terms of the
preferred stock which we may issue. The description below and in any prospectus
supplement is not complete. Our Articles of Incorporation, as amended, and the
applicable Certificate of Designation to our Articles of Incorporation will
describe the terms of the related series of preferred stock. We will provide
you copies of these documents upon request.
General. Our Articles of Incorporation authorizes our board of directors,
from time to time and without further stockholder action, to provide for the
issuance of up to 5,000,000 shares of preferred stock, no par value. Our board
of directors may authorize the issuance of preferred stock in one or more series
and may fix the relative rights and preferences of the shares, including voting
powers, dividend rights, liquidation preferences, redemption rights and
conversion privileges.
As of the date of this prospectus, no shares of preferred stock are
outstanding, the board of directors has not provided for the issuance of any
series of preferred stock, and there are no agreements or understandings for the
issuance of any preferred stock, except for the issuance of Series A Junior
Participating Preferred Stock in connection with preferred share purchase
rights. See "Description of Common Stock - Preferred Stock Purchase Rights" on
Page 16 for additional details regarding our rights plan.
The shares of any series of preferred stock will be, when issued, fully
paid and non-assessable and holders of preferred stock will not have preemptive
rights.
You should refer to the prospectus supplement relating to the class or
series of preferred stock being offered for the specific terms of that class or
series, including:
. the title and stated value of the preferred stock being offered;
. the number of shares of preferred stock being offered, their
liquidation preference per share and their purchase price;
. the dividend rates, periods and/or payment dates or methods of
calculating the payment dates applicable to the preferred stock being
offered;
. whether dividends shall be cumulative or non-cumulative and, if
cumulative, the date from which dividends on the preferred stock being
offered shall accumulate;
. the procedures for any auction and remarketing, if any, for the
preferred stock being offered;
. the provisions for a sinking fund, if any, for the preferred stock
being offered;
. the provisions for redemption, if applicable, of the preferred stock
being offered;
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. any listing of the preferred stock being offered on any securities
exchange or market;
. the terms and conditions, if applicable, upon which the preferred
stock being offered will be convertible into our common stock,
including the conversion price, or the manner of calculating the
conversion price, and the conversion period;
. the terms and conditions, if applicable, upon which the preferred
stock being offered will be exchangeable into debt or equity
securities, including the exchange price, or the manner of calculating
the exchange price, and the exchange period;
. voting rights, if any, of the preferred stock being offered;
. whether interests in the preferred stock being offered will be
represented by depositary shares;
. a discussion of any material and/or special United States federal
income tax considerations applicable to the preferred stock being
offered;
. the relative ranking and preferences of the preferred stock being
offered as to dividend rights and rights upon our liquidation,
dissolution or winding up of our affairs;
. any limitations on the issuance of any class or series of preferred
stock ranking senior to or on a parity with the series of preferred
stock being offered as to dividend rights and rights upon our
liquidation, dissolution or winding up of our affairs; and
. any other specific terms, preferences, rights, limitations or
restrictions of the preferred stock being offered.
Rank. Unless otherwise specified in the applicable prospectus supplement,
the preferred stock will, with respect to distribution rights and rights upon
our liquidation, dissolution or winding up of our affairs, rank:
(1) senior to all classes or series of our common stock and to all
equity securities the terms of which specifically provide that
such equity securities rank junior to the preferred stock being
offered;
(2) on a parity with all equity securities issued by us other than
those referred to in clauses (1) and (3) of this subheading; and
(3) junior to all equity securities issued by us the terms of which
specifically provide that such equity securities rank senior to
the preferred stock being offered.
Distributions. A prospectus supplement will describe the circumstances
relating to distributions on our preferred stock. If our board of directors
approves distributions, holders of our preferred stock of each series will be
entitled to receive distributions out of our assets legally available for
payment to stockholders. These distributions may be cash distributions, or
distributions in kind or in other property. The prospectus supplement will
describe the rates of the distributions and the dates we will make
distributions. Each distribution shall be payable to holders of record as they
appear on our stock transfer books on such record dates as shall be fixed by our
board of directors. Distributions on any series of preferred stock, if
cumulative, will be cumulative from and after the date set forth in the
applicable prospectus supplement.
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Redemption. A prospectus supplement may provide that the preferred stock
will be subject to mandatory redemption or redemption at our option, in whole or
in part. The prospectus supplement will describe the terms, the times and the
redemption prices of the preferred stock.
Liquidation Preference. If we liquidate, dissolve or wind up our affairs,
then, before we make distributions to holders of common stock or any other class
or series of shares of our capital stock ranking junior to the preferred stock
in the distribution of assets, the holders of each series of preferred stock
shall be entitled to receive liquidating distributions out of our assets legally
available for distribution to stockholders. We will make liquidating
distributions in the amount of the liquidation preference set forth in the
applicable prospectus supplement plus an amount equal to all accumulated and
unpaid distributions. After payment of the full amount of the liquidating
distributions to which they are entitled, the holders of shares of preferred
stock will have no right or claim to any of our remaining assets.
If we liquidate, dissolve or wind up and we do not have enough legally
available assets to pay the amount of the liquidating distributions on all
outstanding shares of preferred stock and other classes of capital stock ranking
equally with the preferred stock in the distribution of assets, then the holders
of the preferred stock and all other such classes or series of shares of capital
stock shall share ratably in any such distribution of assets in proportion to
the full liquidating distributions to which they would otherwise be respectively
entitled.
Voting Rights. Holders of preferred stock will not have any voting rights,
except as set forth below or as otherwise from time to time required by law, or
as indicated in the applicable prospectus supplement.
Under the Ohio General Corporation Law, holders of outstanding shares of a
series of preferred stock may be entitled to vote as a separate class on a
proposed amendment to the terms of that series of preferred stock to the
articles of incorporation if the amendment would:
(a) change issued shares of that series of preferred stock into a
lesser number of shares of that series or into shares of a
different series or class;
(b) increase or decrease the par value of the issued shares of that
series of preferred stock;
(c) change the express terms of that series of preferred stock, or
change the express terms of issued shares of any class of stock
senior to that series, in any manner substantially prejudicial to
the holders of each shares of that series; or
(d) authorize shares of another class convertible into, or authorize
the conversion of shares of another class into, shares of that
series of preferred stock, or authorize the directors to fix or
alter the conversion rights of another class convertible into
that series.
Under the terms of our Articles of Incorporation, the approval of a proposed
amendment would require the affirmative vote of at least a majority of the
outstanding shares of that series of preferred stock.
Conversion Rights. The terms and conditions, if any, upon which any series
of preferred stock is convertible into common stock will be set forth in the
applicable prospectus supplement. These terms will include the following:
(a) the number of shares of common stock into which the shares of
preferred stock are convertible;
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(b) the conversion price or the manner of calculating the conversion
price;
(c) the conversion date(s) or period(s);
(d) provisions as to whether conversion will be at the option of the
preferred stockholders or at our option; and
(e) the events requiring an adjustment of the conversion price and
provisions affecting conversion in the event of the redemption of
such series of preferred stock.
Transfer Agent and Registrar. The transfer agent and registrar for the
preferred stock will be set forth in the applicable prospectus supplement.
DESCRIPTION OF COMMON STOCK
Our Articles of Incorporation provides that we have authority to issue
50,000,000 shares of common stock, par value $0.01 per share. As of August 1,
1999, 20,760,758 shares of common stock were outstanding. Our common stock is
listed on the NYSE.
Dividends. Dividends may be paid on the common stock and on any class or
series of stock entitled to participate with the common stock as to dividends,
but only when and as declared by our board of directors.
Voting Rights. Each holder of our common stock is entitled to one vote per
share on all matters submitted to a vote of stockholders and does not have
cumulative voting rights.
Liquidation. If we liquidate, holders of common stock are entitled to
receive all remaining assets available for distribution to stockholders after
satisfaction of our liabilities and the preferential rights of any preferred
stock that may be outstanding at that time. Our outstanding common shares are
fully paid and nonassessable. The holders of our common stock do not have any
preemptive, conversion or redemption rights. The registrar and transfer agent
for our common stock is ChaseMellon Shareholder Services, L.L.C.
Preferred Stock Purchase Rights. On June 9, 1997, our board of directors
declared a dividend distribution of one preferred share purchase right for each
outstanding share of common stock. Each right, when it becomes exercisable,
entitles the registered holder to purchase from us one-hundredth of a share of
our Series A Junior Participating Preferred Stock, without par value, at a price
of $70.00 per one-hundredth of a preferred share, subject to adjustment. These
rights attached to all certificates representing our common shares outstanding
on June 19, 1997 and attach to common shares issued after that date until the
distribution date described below. No separate right certificates will be
distributed. The rights will separate from our common shares on the
distribution date. Distribution date means the date which is the earliest to
occur of (1) 10 days after our public announcement that a person or group of
affiliated or associated persons have acquired beneficial ownership of 20% or
more of our outstanding common shares; or (2) 10 days (or such later date as our
board of directors may determine) following the commencement of, or announcement
of an intention to make, a tender offer or exchange offer, the consummation of
which would result in a person or group acquiring 20% of our outstanding voting
power. We may redeem the rights at the option of our board of directors for
$0.01 per right under certain circumstances. Our board of directors may amend
the rights at any time without stockholders approval. The Rights will expire by
their terms on June 9, 2007.
Some Important Charter Provisions. Our Articles of Incorporation provide
that the approval of at least two-thirds of the holders of our capital stock
voting power, and under some circumstances the holders of two-thirds of classes
of preferred stock, are needed to approve a merger or consolidation if such a
transaction
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is required under Ohio law to be submitted to our stockholders for a vote. In
addition, our Code of Regulations provide that special meetings of stockholders
may be called by a shareholder or shareholders only if they hold at least 50% of
the shares of stock entitled to vote. Our Regulations also provide that the
number of directors may be changed by the directors or at a meeting of the
stockholders called for the purpose of electing directors, but shall not be
fewer than three nor greater than twelve. Our Regulations further provide that
vacancies on the board may only be filled by the remaining directors. In
addition, as permitted by Ohio law, our Regulations provide that directors may
only be removed for cause.
These provisions may have the effect of deterring hostile takeovers or
delaying changes in our control or our management.
Some Important Ohio Statutory Provisions. We are subject to certain
provisions of Ohio law that may discourage or render more difficult an
unsolicited takeover:
The Merger Moratorium Act prohibits certain mergers, sales of assets,
issuances or purchases of securities, liquidation or dissolution, or
reclassifications of the then-outstanding shares of an Ohio corporation
involving, or for the benefit of, certain beneficial holders of stock
representing 10% or more of the voting power of the corporation (a "10%
shareholder"), unless:
. the transaction is approved by the directors prior to the time that
the 10% shareholder became a 10% shareholder (the "Shareholder
Acquisition Date");
. the acquisition of 10% of the voting power is approved by the
directors prior to the Shareholder Acquisition Date; or
. the transaction involves a 10% shareholder that has been such for at
least three years and the transaction is either approved by holders of
two-thirds of the voting power of the corporation and the holders of a
majority of the voting power not owned by 10% shareholders, or certain
minimum price and form of consideration requirements are met.
The Control Share Act provides that the acquisition of shares entitling the
holder to exercise voting power in certain ranges (one-fifth or more, one-third
or more, or a majority) can be made only with the prior authorization of:
. the holders of at least a majority of the total voting power; and
. the holders of at least a majority of the total voting power held by
shareholders other than the proposed acquirer, officers of the
corporation elected or appointed by the directors, and directors of
the corporation who are also employees and excluding certain shares
that are transferred after the announcement of the proposed
acquisition and prior to the vote with respect to the proposed
acquisition. The Control Share Act does not specify a remedy for
violation of the Act. However, in at least one situation, a court has
set aside an acquisition made in violation of the Control Share Act.
The Profit Disgorgement Act, provides Ohio corporations, or in certain
circumstances the shareholders of an Ohio corporation, a cause of action to
recover profits realized under certain circumstances by persons who dispose of
securities of a corporation within 18 months of proposing to acquire such
corporation.
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Change of Control Provision for Debt Securities. If we issue debt
securities pursuant to the indenture, they, unless otherwise indicated in a
prospectus supplement, will be subject to the option of the holders of such
securities to cause us to repurchase the debt securities upon a change of
control as described on page 12. This provision may have the effect of
deterring hostile takeovers.
DESCRIPTION OF WARRANTS
General. We may issue warrants to purchase our debt or equity securities.
We may issue warrants independently or together with any offered securities and
the warrants may be attached to or separate from those offered securities. We
will issue the warrants under the warrant agreements to be entered into between
us and a bank or trust company, as warrant agent, all as described in the
applicable prospectus supplement. The warrant agent will act solely as our agent
in connection with the warrants of the series being offered and will not assume
any obligation or relationship of agency or trust for or with any holders or
beneficial owners of warrants.
The applicable prospectus supplement will describe the following terms,
where applicable, of warrants in respect of which this prospectus is being
delivered:
. the title of the warrants;
. the designation, amount and terms of the securities for which the
warrants are exercisable;
. the designation and terms of the other securities, if any, with which
the warrants are to be issued and the number of warrants issued with
each such security;
. the price or prices at which the warrants will be issued;
. the aggregate number of warrants;
. any provisions for adjustment of the number or amount of securities
receivable upon exercise of the warrants or the exercise price of the
warrants;
. the price or prices at which the securities purchasable upon exercise
of the warrants may be purchased;
. if applicable, the date on and after which the warrants and the
securities purchasable upon exercise of the warrants will be
separately transferable;
. if applicable, a discussion of the material United States federal
income tax considerations applicable to the exercise of the warrants;
. any other terms of the warrants, including terms, procedures and
limitations relating to the exchange and exercise of the warrants;
. the date on which the right to exercise the warrants shall commence,
and the date on which the right shall expire;
. The maximum or minimum number of warrants which may be exercised at
any time; and
. information with respect to book-entry procedures, if any.
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Exercise of Warrants. Each warrant will entitle the holder of warrants to
purchase for cash the amount of debt or equity securities, at the exercise price
as shall be set forth in, or be determinable as set forth in, the prospectus
supplement relating to the warrants. Warrants may be exercised at any time up
to the close of business on the expiration date set forth in the prospectus
supplement relating to the warrants. After the close of business on the
expiration date, unexercised warrants will become void.
Warrants may be exercised as set forth in the prospectus supplement
relating to the warrants.
PLAN OF DISTRIBUTION
Offerings by RTI. We may sell any series of debt or equity securities:
. through underwriters or dealers;
. through agents;
. directly to one or more purchasers; or
. directly to stockholders.
We may effect the distribution of the debt or equity securities from time
to time in one or more transactions either:
. at a fixed price or prices which may be changed;
. at market prices prevailing at the time of sale;
. at prices determined by one or more auctions;
. at prices relating to the prices of other securities;
. at prices relating to such prevailing market prices; or
. at negotiated prices.
For each offering of debt or equity securities, the prospectus supplement
will describe the plan of distribution.
If we use underwriters in the sale, they will buy the debt or equity
securities for their own account. The underwriters may then resell the debt or
equity securities in one or more transactions at a fixed public offering price
or at varying prices determined at the time of sale or after the sale. The
obligations of the underwriters to purchase the debt or equity securities will
be subject to certain conditions. The underwriters will be obligated to
purchase all the debt or equity securities offered if they purchase any debt or
equity securities. Any initial public offering price and any discounts or
concessions allowed or re-allowed or paid to dealers may be changed from time to
time.
If we use dealers in the sale, we will sell debt or equity securities to
such dealers as principals. The dealers may then resell the debt or equity
securities to the public at varying prices to be determined by these dealers at
the time of resale. If we use agents in the sale, they will use their
reasonable best efforts to solicit purchasers for the period of their
appointment. If we sell directly, no underwriters or agents would be involved.
We are not making an offer of debt securities in any state that does not permit
such an offer.
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Underwriters, dealers and agents that participate in the debt or equity
securities distribution may be deemed to be underwriters as defined in the
Securities Act of 1933. Any discounts, commissions, or profit they receive when
they resell the debt securities may be treated as underwriting discounts and
commissions under that Act. We may have agreements with underwriters, dealers
and agents to indemnify them against certain civil liabilities, including
certain liabilities under the Securities Act of 1933, or to contribute with
respect to payments that they may be required to make.
We may authorize underwriters, dealers or agents to solicit offers from
certain institutions whereby the institution contractually agrees to purchase
the debt or equity securities from us on a future date at a specified price.
This type of contract may be made only with institutions that we specifically
approve. Such institutions could include banks, insurance companies, pension
funds, investment companies and educational and charitable institutions. The
underwriters, dealers or agents will not be responsible for the validity or
performance of these contracts.
Underwriters, dealers and agents may be our customers or may engage in
transactions with us or perform services for us in the ordinary course of
business.
LEGAL MATTERS
Doepken Keevican & Weiss Professional Corporation will issue an opinion
about the legality of the debt and equity securities for us. Underwriters,
dealers or agents, who we will identify in a prospectus supplement, may have
their counsel opine about certain legal matters relating to the debt and equity
securities.
EXPERTS
The financial statements incorporated in this Prospectus by reference to
the Annual Report on Form 10-K for the year ended December 31, 1998, as amended,
have been so incorporated in reliance on the report of PricewaterhouseCoopers
LLP, independent accountants, given on the authority of said firm as experts in
auditing and accounting.
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You should rely only on the information incorporated by reference or provided in
the prospectus or a prospectus supplement. We have not authorized anyone else
to provide you with different information. Neither RTI, nor any other person on
our behalf, is making an offer to sell or soliciting an offer to buy any of the
securities described in this prospectus or in a prospectus supplement in any
state where the offer is not permitted by law. You should not assume that the
information in this prospectus or a prospectus supplement is accurate as of any
date other than the date on the front of the documents. There may have been
changes in our affairs since the date of the prospectus or a prospectus
supplement.
TABLE OF CONTENTS
Page
----
About this Prospectus............................ 2
Where You Can Find More Information.............. 2
Incorporation of Certain Documents by Reference.. 2
Certain Forward-Looking Statements............... 3
Risk Factors..................................... 4
The Company...................................... 6
Use of Proceeds.................................. 7
Description of Debt Securities................... 7
Description of Preferred Stock................... 13
Description of Common Stock...................... 16
Description of Warrants.......................... 18
Plan of Distribution............................. 19
Legal Matters.................................... 20
Experts.......................................... 20
RTI INTERNATIONAL
METALS, INC.
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
WARRANTS TO PURCHASE DEBT SECURITIES
WARRANTS TO PURCHASE EQUITY SECURITIES
_______________________________
P R O S P E C T U S
_______________________________
, 1999
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses Of Issuance And Distribution
Estimated expenses of the Registrant in connection with the issuance and
distribution of the Registrant's Common Stock are as follows:
<TABLE>
<CAPTION>
<S> <C>
Securities and Exchange Commission registration fee.. $27,800.00
Transfer Agent and Registrar Fees....................
Accounting fees and expenses......................... 5,000.00
Printing............................................. 5,000.00
Legal fees and expenses.............................. 20,000.00
Listing Fees.........................................
Other................................................
__________
Total Expenses........................ $57,800.00
</TABLE>
Item 15. Indemnification Of Directors And Officers
The Code of Regulations of RTI International Metals, Inc. (the "Company" or the
"Registrant") effectively provides that the Company, to the full extent
permitted by Section 1701.13 of the Ohio Revised Code, as amended from time to
time ("Section 1701.13"), shall indemnify all directors and officers of the
Company and may indemnify all employees, representatives and other persons as
permitted pursuant thereto.
Section 1701.13 of the Ohio Revised Code permits a corporation to indemnify its
officers, directors and employees (other than in certain cases involving bad
faith, negligence or misconduct) from and against any and all claims and
liabilities to which he or she may become subject by reason of his or her
position, or acts or commissions in such position, including reasonable costs of
defense and settlements (except in connection with shareholder derivative suits,
where indemnification is limited to the costs of defense). Ohio law also permits
corporations to provide broader indemnification than that provided by statute.
The Company maintains insurance against liabilities under the Securities Act of
1933 (the "Securities Act") for the benefit of its officers and directors.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers or persons controlling the Company pursuant
to the foregoing provisions, the Company has been informed that in the opinion
of the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is therefore unenforceable.
Item 16. Exhibits
The following exhibits are filed herewith or incorporated by reference herein as
part of this Registration Statement:
Number Description
-----------
4.1 RTI International Metals, Inc.'s amended and restated Articles of
Incorporation
4.2 RTI International Metals, Inc.'s Code of Regulations
II-1
<PAGE>
4.3 Form of Indenture
5.1 Opinion of Doepken Keevican & Weiss Professional Corporation
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Doepken Keevican & Weiss Professional Corporation
(included in opinion filed as Exhibit 5.1 hereto)
25.1 Form T-1 Statement of Eligibility Under the Trust Indenture Act of
1939 of A Corporation Designated to Act As Trustee
Item 17. Undertakings
The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in this Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such information
in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not
apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the
Registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report
pursuant to section 13(a) or 15(d) of the Securities Exchange Act of
1934 that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the
securities offered therein and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-2
<PAGE>
(5) That, insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to any provision or
arrangement whereby the Registrant may indemnify a director, officer
or controlling person of the Registrant against liabilities arising
under the Securities Act of 1933, or otherwise, the Registrant has
been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication
of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Niles, State of Ohio, on September 8, 1999.
RTI INTERNATIONAL METALS, INC.
By /s/ Timothy G. Rupert
--------------------------------
Timothy G. Rupert
President & Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities indicated
on September 7, 1999.
SIGNATURE
/s/ Timothy G. Rupert President & Chief Executive Officer &
- ---------------------------------- Director
Timothy G. Rupert
* Vice President & Chief Financial Officer
- ---------------------------------- & Treasurer
Lawrence W. Jacobs
* Executive Vice President & Director
- ----------------------------------
John H. Odle
* Director
- ----------------------------------
Craig R. Andersson
* Director
- ----------------------------------
Neil A. Armstrong
* Director
- ----------------------------------
Daniel I. Booker
* Director
- ----------------------------------
Ronald L. Gallatin
* Director
- ----------------------------------
Charles C. Gedeon
* Chairman of the Board of Directors
- ----------------------------------
Robert M. Hernandez
* Director
- ----------------------------------
Edith E. Holiday
* Director
- ----------------------------------
Wesley W. Von Schack
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Number Description Method of Filing
<C> <S> <C>
4.1 RTI International Metals, Inc.'s amended and restated Previously filed as Exhibit 3.1 to Form 10-Q
Articles of Incorporation (1-14437) and incorporated herein by
reference
4.2 RTI International Metals, Inc.'s Code of Regulations Previously filed as Exhibit 3.3 to Registration
Statement on Form S-4 (333-61935) and incorporated
herein by reference
4.3 Form of Indenture Filed herewith
5.1 Opinion of Doepken Keevican & Weiss Professional Filed herewith
Corporation
23.1 Consent of PricewaterhouseCoopers LLP Filed herewith
23.2 Consent of Doepken Keevican & Weiss Professional Filed herewith
Corporation (included in opinion filed as Exhibit
5.1 hereto)
25.1 Form T-1 Statement of Eligibility Under the Trust Filed herewith
Indenture Act of 1939 of A Corporation Designated to
Act As Trustee
</TABLE>
II-5
<PAGE>
EXHIBIT 4.3
RTI INTERNATIONAL METALS, INC.
AND
THE FIRST NATIONAL BANK OF CHICAGO
AS TRUSTEE
INDENTURE
DATED AS OF _____________________
DEBT SECURITIES
<PAGE>
TABLE OF CONTENTS*
RECITALS OF THE COMPANY.....................................................1
ARTICLE I
DEFINITIONS
Section 1.01. Certain Terms Defined......................................1
Section 1.02. Incorporation by Reference of Trust Indenture Act.........12
Section 1.03. Rules of Construction.....................................13
ARTICLE II
DEBT SECURITIES
Section 2.01. Forms Generally...........................................13
Section 2.02. Form of Trustee's Certificate of Authentication...........13
Section 2.03. Principal Amount; Issuable in Series......................14
Section 2.04. Execution of Debt Securities..............................17
Section 2.05. Authentication and Delivery of Debt Securities............17
Section 2.06. Denomination of Debt Securities...........................19
Section 2.07. Registration of Transfer and Exchange.....................19
Section 2.08. Temporary Debt Securities.................................20
Section 2.09. Mutilated, Destroyed, Lost or Stolen Debt Securities......21
Section 2.10. Cancellation of Surrendered Debt Securities...............22
Section 2.11. Provisions of the Indenture and Debt Securities
for the Sole Benefit of the Parties and the Holders.......22
Section 2.12. Payment of Interest; Interest Rights Preserved............22
Section 2.13. Securities Denominated in Foreign Currencies..............23
Section 2.14. Wire Transfers............................................23
Section 2.15. Securities Issuable in the Form of a Global Security......24
Section 2.16. Medium Term Securities....................................27
Section 2.17. Defaulted Interest........................................27
Section 2.18. Judgments.................................................28
Section 2.19. CUSIP Numbers.............................................29
- ---------------------------------
* The Table of Contents is not part of the Indenture.
i
<PAGE>
ARTICLE III
REDEMPTION OF DEBT SECURITIES
Section 3.01. Applicability of Article..................................29
Section 3.02. Notice of Redemption; Selection of Debt Securities........29
Section 3.03. Payment of Debt Securities Called for Redemption..........31
Section 3.04. Mandatory and Optional Sinking Funds......................32
Section 3.05. Redemption of Debt Securities for Sinking Fund............32
ARTICLE IV
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01. Payment of Principal of, and Premium, If Any, and
Interest on, Debt Securities..............................34
Section 4.02. Maintenance of Offices or Agencies for Registration
of Transfer, Exchange and Payment of Debt Securities......34
Section 4.03. Appointment to Fill a Vacancy in the Office of Trustee....35
Section 4.04. Duties of Paying Agents, etc..............................35
Section 4.05. Statement by Officers as to Default.......................36
Section 4.06. Further Instruments and Acts..............................36
Section 4.07. Existence.................................................36
Section 4.08. Limitation on Liens.......................................36
Section 4.09. Limitation on Sale/Leaseback Transactions.................37
Section 4.10. Purchase of Debt Securities at Option of the
Holder upon Change in Control.............................37
Section 4.11. Effect of Change in Control Purchase Notice...............40
Section 4.12. Deposit of Change in Control Purchase Notice..............40
ARTICLE V
HOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
Section 5.01. Company to Furnish Trustee Information as to Names
and Addresses of Holders; Preservation of Information.....41
Section 5.02. Communications to Holders.................................41
Section 5.03. Reports by Company........................................41
Section 5.04. Reports by Trustee........................................42
Section 5.05. Record Dates for Action by Holders........................42
ii
<PAGE>
ARTICLE VI
REMEDIES OF THE TRUSTEE AND HOLDERS IN EVENT OF DEFAULT
Section 6.01. Events of Default.........................................43
Section 6.02. Collection of Indebtedness by Trustee, etc................46
Section 6.03. Application of Moneys Collected by Trustee................47
Section 6.04. Limitation on Suits by Holders............................48
Section 6.05. Remedies Cumulative; Delay or Omission in Exercise
of Rights Not a Waiver of Default.........................49
Section 6.06. Rights of Holders of Majority in Principal Amount of
Debt Securities to Direct Trustee and to Waive Default....49
Section 6.07. Trustee to Give Notice of Defaults Known to It, but
May Withhold Such Notice in Certain Circumstances.........49
Section 6.08. Requirement of an Undertaking To Pay Costs in Certain
Suits under the Indenture or Against the Trustee..........50
ARTICLE VII
CONCERNING THE TRUSTEE
Section 7.01. Certain Duties and Responsibilities.......................50
Section 7.02. Certain Rights of Trustee.................................52
Section 7.03. Trustee Not Liable for Recitals in Indenture or
in Debt Securities........................................53
Section 7.04. Trustee, Paying Agent or Registrar May Own Debt
Securities................................................53
Section 7.05. Moneys Received by Trustee to Be Held in Trust............53
Section 7.06. Compensation and Reimbursement............................53
Section 7.07. Right of Trustee to Rely on an Officers' Certificate
Where No Other Evidence Specifically Prescribed...........54
Section 7.08. Separate Trustee; Replacement of Trustee..................54
Section 7.09. Successor Trustee by Merger...............................55
Section 7.10. Eligibility; Disqualification.............................56
Section 7.11. Preferential Collection of Claims Against Company.........56
Section 7.12. Compliance with Tax Laws..................................56
ARTICLE VIII
CONCERNING THE HOLDERS
Section 8.01. Evidence of Action by Holders.............................56
Section 8.02. Proof of Execution of Instruments and of Holding of
Debt Securities...........................................57
Section 8.03. Who May Be Deemed Owner of Debt Securities................57
iii
<PAGE>
Section 8.04. Instruments Executed by Holders Bind Future Holders.......57
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01. Purposes for Which Supplemental Indenture May Be
Entered into Without Consent of Holders...................58
Section 9.02. Modification of Indenture with Consent of Holders of
Debt Securities...........................................60
Section 9.03. Effect of Supplemental Indentures.........................62
Section 9.04. Debt Securities May Bear Notation of Changes by
Supplemental Indentures...................................62
Section 9.05. Payment for Consent.......................................62
ARTICLE X
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 10.01. Consolidations and Mergers of the Company.................62
Section 10.02. Rights and Duties of Successor Corporation................63
ARTICLE XI
SATISFACTION AND DISCHARGE OF
INDENTURE; DEFEASANCE; UNCLAIMED MONEYS
Section 11.01. Applicability of Article..................................63
Section 11.02. Satisfaction and Discharge of Indenture; Defeasance.......64
Section 11.03. Conditions of Defeasance..................................65
Section 11.04. Application of Trust Money................................66
Section 11.05. Repayment to Company......................................66
Section 11.06. Indemnity for U.S. Government Obligations.................67
Section 11.07. Reinstatement.............................................67
ARTICLE XII
SUBORDINATION OF DEBT SECURITIES
Section 12.01. Applicability of Article; Agreement To Subordinate........67
Section 12.02. Liquidation, Dissolution, Bankruptcy......................67
Section 12.03. Default on Senior Indebtedness............................68
iv
<PAGE>
Section 12.04. Acceleration of Payment of Debt Securities................69
Section 12.05. When Distribution Must Be Paid Over.......................69
Section 12.06. Subrogation...............................................69
Section 12.07. Relative Rights...........................................69
Section 12.08. Subordination May Not Be Impaired by Company..............69
Section 12.09. Rights of Trustee and Paying Agent........................69
Section 12.10. Distribution or Notice to Representative..................70
Section 12.11. Article XII Not to Prevent Defaults or Limit Right to
Accelerate................................................70
Section 12.12. Trust Moneys Not Subordinated.............................70
Section 12.13. Trustee Entitled to Rely..................................70
Section 12.14. Trustee to Effectuate Subordination.......................71
Section 12.15. Trustee Not Fiduciary for Holders of Senior Indebtedness..71
Section 12.16. Reliance by Holders of Senior Indebtedness on
Subordination Provisions..................................71
ARTICLE XIII
GUARANTEE OF DEBT SECURITIES
Section 13.01. Applicability of Article..................................71
Section 13.02. Unconditional Guarantee...................................72
Section 13.03. Execution and Delivery of Subsidiary Guarantees...........73
Section 13.04. Limitation on Merger or Consolidation.....................74
Section 13.05. Release of Subsidiary Guarantors..........................74
Section 13.06. Limitation of Subsidiary Guarantor's Liability............75
Section 13.07. Contribution..............................................75
Section 13.08. Subordination of Guarantees...............................75
ARTICLE XIV
MISCELLANEOUS PROVISIONS
Section 14.01. Successors and Assigns of Company Bound by Indenture......76
Section 14.02. Acts of Board, Committee or Officer of Successor
Company Valid.............................................76
Section 14.03. Required Notices or Demands...............................76
Section 14.04. Indenture and Debt Securities to Be Construed in
Accordance with the Laws of the State of New York.........77
Section 14.05. Officers' Certificate and Opinion of Counsel to Be
Furnished upon Application or Demand by the Company.......77
Section 14.06. Payments Due on Legal Holidays............................77
Section 14.07. Provisions Required by Trust Indenture Act to Control.....78
v
<PAGE>
Section 14.08. Computation of Interest on Debt Securities.............78
Section 14.09. Rules by Trustee, Paying Agent and Registrar...........78
Section 14.10. No Recourse Against Others.............................78
Section 14.11. Severability...........................................78
Section 14.12. Effect of Headings.....................................78
Section 14.13. Indenture May Be Executed in Counterparts..............78
vi
<PAGE>
RTI INTERNATIONAL METALS, INC.
DEBT SECURITIES
CROSS REFERENCE SHEET*
This Cross Reference Sheet shows the location in the Indenture of the provisions
inserted pursuant to Sections 310-318(a), inclusive of the Trust Indenture Act
of 1939.
INDENTURE
TIA SECTION SECTION
- ----------------------------- ----------
310 (a)(1).....................................................7.10
(a)(2).....................................................7.10
(a)(3).....................................................7.10
(a)(4).....................................................7.10
(a)(5).....................................................7.10
(b)........................................................7.10
(c)......................................................N.A.**
311 (a)........................................................7.11
(b)........................................................7.11
(c)........................................................N.A.
312 (a)........................................................5.01
(b)........................................................5.02
(c)........................................................5.02
- -------------------------------
* The Cross Reference Sheet is not part of the Indenture.
** N.A. means "Not Applicable."
vii
<PAGE>
313 (a)........................................................5.04
(b)(1).....................................................5.04
(b)(2).....................................................5.04
(c).......................................................14.03
(d)........................................................5.04
314 (a)(1)..................................................5.03(a)
(a)(2)..................................................5.03(b)
(a)(3)....................................5.03(a) & (b) & 13.03
(a)(4).....................................................4.05
(b)........................................................N.A.
(c)(1)....................................................14.05
(c)(2)....................................................14.05
(c)(3).....................................................N.A.
(d)........................................................N.A.
(e).......................................................14.05
315 (a).....................................................7.01(a)
(b)................................................6.07 & 13.03
(c)........................................................7.01
(d)........................................................7.01
(e)........................................................6.08
316 (a) (last sentence)........................................1.01
(a)(1)(A)..................................................6.06
viii
<PAGE>
(a)(1)(B)..................................................6.06
(a)(2)..................................................9.01(d)
(b)........................................................6.04
(c)........................................................5.05
317 (a)(1).....................................................6.02
(a)(2).....................................................6.02
(b)........................................................4.04
318 (a).......................................................14.07
ix
<PAGE>
INDENTURE, dated as of _________________, between RTI International Metals,
Inc., a corporation duly organized and existing under the laws of the State of
Ohio (hereinafter sometimes called the "Company"), and The First National Bank
of Chicago, a national banking association (hereinafter sometimes called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture to
provide for the issuance from time to time of its debentures, notes, bonds or
other evidences of indebtedness to be issued in one or more series unlimited as
to principal amount (herein called the "Debt Securities"), 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
That in order to declare the terms and conditions upon which the Debt
Securities are authenticated, issued and delivered, and in
consideration of the premises, and of the purchase and acceptance of
the Debt Securities by the holders thereof, the Company and the
Trustee covenant and agree with each other, for the benefit of the
respective Holders from time to time of the Debt Securities or any
series thereof, as follows:
ARTICLE I
DEFINITIONS
Section 1.01. CERTAIN TERMS DEFINED. The terms defined in this Section 1.01
(except as herein otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any Indenture supplemental
hereto shall have the respective meanings specified in this Section 1.01. All
other terms used in this Indenture which are defined in the Trust Indenture Act
or which are by reference therein defined in the Securities Act (except as
herein otherwise expressly provided or unless the context otherwise requires),
shall have the meanings assigned to such terms in the Trust Indenture Act and in
the Securities Act as in force as of the date of original execution of this
Indenture.
"Affiliate" of any specified Person means any other Person, directly or
indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any 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.
1
<PAGE>
"Attributable Indebtedness" means, in respect of a Sale/Leaseback Transaction,
as at the time of determination, the present value (discounted at the interest
rate borne by the Securities, compounded annually) of the total obligations of
the lessee for rental payments during the remaining term of the lease included
in such Sale/Leaseback Transaction (including any period for which such lease
has been extended).
"Authorized Newspaper" means a newspaper in an official language of the country
of publication customarily published at least once a day, and customarily
published for at least five days in each calendar week, and of general
circulation in such city or cities specified pursuant to Section 2.03 with
respect to the Debt Securities of any series. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any business day in such city.
"Board of Directors" means either the Board of Directors of the Company or any
duly authorized committee or subcommittee of such Board, except as the context
may otherwise require.
"Business Day" means, any day that is not a Saturday, a Sunday or a legal
holiday or a day on which banking institutions or trust companies are authorized
or obligated by law to close; except, when used with respect to any Place of
Payment, as otherwise specified pursuant to Section 2.03.
"Capital Stock" of any Person means any and all shares, interests, rights to
purchase, warrants, options, participations or other equivalents of or interests
(including partnership interests) in (however designated) equity of such Person,
including any Preferred Stock, but excluding any debt securities convertible
into such equity.
"Capitalized Lease Obligation" means an obligation that is required to be
classified and accounted for as a capitalized lease for financial reporting
purposes in accordance with GAAP.
"Change in Control" shall have the meaning assigned to it in Section 4.10(a).
"Change in Control Purchase Date" shall have the meaning assigned to it in
Section 4.10(a).
"Change in Control Purchase Notice" shall have the meaning assigned to it in
Section 4.10(c).
"Change in Control Purchase Price" shall have the meaning assigned to it in
Section 4.10(a).
"Commodity Price Protection Agreement" means, in respect of any Person, any
forward contract, commodity swap agreement, commodity option agreement or other
similar agreement or arrangement designed to protect such Person against
fluctuations in commodity prices.
"Common Stock" means the common stock, par value $.01 per share, of the Company,
which stock is currently listed on the New York Stock Exchange.
2
<PAGE>
"Company" means RTI International Metals, Inc., an Ohio corporation, and,
subject to the provisions of Article X, shall also include its successors and
assigns.
"Company Order" means a written order of the Company, signed by its Chairman of
the Board, Vice Chairman, President or any Vice President and by its Treasurer,
Secretary, any Assistant Treasurer or any Assistant Secretary.
"Corporate trust office of the trustee" or other similar term means the office
of the Trustee at which the corporate trust business of the Trustee shall, at
any particular time, be principally administered in the United States of
America, except that with respect to the presentation of Debt Securities for
payment or for registration of transfer and exchange, such term shall also mean
the office of the Trustee or the Trustee's agent in the Borough of Manhattan,
the City and State of New York, at which at any particular time its corporate
agency business shall be conducted.
"Currency" means Dollars or Foreign Currency.
"Currency Exchange Protection Agreement" means, in respect of any Person, any
foreign exchange contract, currency swap agreement, currency option or other
similar agreement or arrangement designed to protect such Person against
fluctuations in currency exchange rates.
"Debt Security" or "Debt Securities" has the meaning stated in the first recital
of this Indenture and more particularly means any debt security or debt
securities, as the case may be of any series authenticated and delivered under
this Indenture.
"Default" means any event which is, or after notice or passage of time or both
would be, an Event of Default.
"Depositary" means, unless otherwise specified by the Company pursuant to either
Section 2.03 or 2.15, with respect to registered Debt Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, The Depository Trust Company, New York, New York, or any successor
thereto registered as a clearing agency under the Exchange Act or other
applicable statute or regulations.
"Designated Senior Indebtedness" means any Senior Indebtedness which, at the
date of determination, has an aggregate principal amount outstanding of, or
under which, at the date of determination, the holders thereof are committed to
lend up to, at least $25 million and is specifically designated by the Company
in the instrument evidencing or governing such Senior Indebtedness as
"Designated Senior Indebtedness" for purposes of this Indenture and has been
designated as "Designated Senior Indebtedness" for purposes of this Indenture in
an Officers' Certificate received by the Trustee.
"Dollar" or "$" means such currency of the United States as at the time of
payment is legal tender for the payment of public and private debts.
3
<PAGE>
"Dollar Equivalent" means, with respect to any monetary amount in a Foreign
Currency, at any time for the determination thereof, the amount of Dollars
obtained by converting such Foreign Currency involved in such computation into
Dollars at the spot rate for the purchase of Dollars with the applicable Foreign
Currency as quoted by _________________ (unless another comparable financial
institution is designated by the Company) in New York, New York at approximately
11:00 a.m. (New York time) on the date two business days prior to such
determination.
"Euro" means the lawful currency of the participating member states of the
European Union, or its successors that adopt a single currency in accordance
with the Treaty establishing the European Community, as amended by the Treaty on
European Union that was signed on February 7, 1992.
"Event of Default" has the meaning specified in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934.
"Floating Rate Security" means a Debt Security that provides for the payment of
interest at a variable rate determined periodically by reference to an interest
rate index specified pursuant to Section 2.03.
"Foreign Currency" means a currency issued by the government of any country
other than the United States or a composite currency the value of which is
determined by reference to the values of the currencies of any group of
countries.
"GAAP" means generally accepted accounting principles in the United States as in
effect as of the date on which the Debt Securities of the applicable series are
issued, including those set forth in (i) the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants, (ii) statements and pronouncements of the Financial Accounting
Standards Board, (iii) such other statements by such other entity as approved by
a significant segment of the accounting profession and (iv) the rules and
regulations of the SEC governing the inclusion of financial statements
(including pro forma financial statements) in periodic reports required to be
filed pursuant to Section 13 of the Exchange Act, including opinions and
pronouncements in staff accounting bulletins and similar written statements from
the accounting staff of the SEC. All ratios and computations based on GAAP
contained in this Indenture shall be computed in conformity with GAAP
consistently applied.
"Global Security" means with respect to any series of Debt Securities issued
hereunder, a Debt Security which is executed by the Company and authenticated
and delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction, all in accordance with this Indenture and any Indentures
supplemental hereto, or resolution of the Board of Directors and set forth in an
Officers' Certificate, which shall be registered in the name of the Depositary
or its nominee and which shall represent, and shall be denominated in an amount
equal to the aggregate principal amount of, all the Outstanding Debt Securities
of such series or any portion thereof, in either case having the same terms,
including, without limitation, the same original issue date, date or dates on
which principal is due and interest rate or method of determining interest.
4
<PAGE>
"Government Contract Lien" means any Lien required by any contract, statute,
regulation or order in order to permit the Company or any of its Subsidiaries to
perform any contract or subcontract made by it with or at the request of the
United States or any State thereof or any department, agency or instrumentality
of either or to secure partial, progress, advance or other payments by the
Company or any of its Subsidiaries to the United States or any State thereof or
any department, agency or instrumentality of either pursuant to the provisions
of any contract, statute, regulation or order.
"Guarantee" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Indebtedness or other obligation of any
other Person and any obligation, direct or indirect, contingent or otherwise, of
such Person (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation of such other Person
(whether arising by virtue of partnership arrangements, or by agreement to keep-
well, to purchase assets, goods, securities or services, to take-or-pay, or to
maintain financial statement conditions or otherwise) or (b) entered into for
purposes of assuring in any other manner the obligee of such Indebtedness or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part); provided, however, that the term
"Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Hedging Obligations" of any Person means the obligations of such Person
pursuant to any Interest Rate Protection Agreement, Currency Exchange Protection
Agreement, Commodity Price Protection Agreement or other similar agreement.
"Holder," "Holder of Debt Securities" or other similar terms means the
Registered Holder of a Registered Security.
"Indebtedness" means, with respect to any Person, at any date, any of the
following, without duplication: (i) any liability, contingent or otherwise, of
such Person (A) for borrowed money (whether or not the recourse of the lender is
to the whole of the assets of such Person or only to a portion thereof), (B)
evidenced by a note, bond, debenture or similar instrument, or (C) for the
payment of money relating to a Capitalized Lease Obligation or other obligation
(whether issued or assumed) relating to the deferred purchase price of property;
(ii) all conditional sale obligations and all obligations under any title
retention agreement (even if the rights and remedies of the seller under such
agreement in the event of default are limited to repossession or sale of such
property); (iii) all obligations for the reimbursement of any obligor on any
letter of credit, banker's acceptance or similar credit transaction other than
as entered into in the ordinary course of business; (iv) all indebtedness of
others secured by (or for which the holder of such indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on any asset or
property (including, without limitation, leasehold interests and any other
tangible or intangible property) of such Person, whether or not such
indebtedness is assumed by such Person or is not otherwise such Person's legal
liability; provided that if the obligations so secured have not been assumed in
full by such Person or are otherwise not such Person's legal liability in full,
the amount of such indebtedness for the purposes of this definition shall be
limited to the lesser of the amount of such indebtedness secured by such
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Lien or the fair market value of the assets or the property securing such lien;
(v) all indebtedness of others (including all interest and dividends on any
Indebtedness or Preferred Stock of any other Person the payment of which is)
guaranteed, directly or indirectly, by such Person or that is otherwise its
legal liability or which such Person has agreed to purchase or repurchase or in
respect of which such Person has agreed contingently to supply or advance funds;
and (vi) to the extent not otherwise included in this definition, obligations in
respect of Hedging Obligations. Indebtedness shall not include (a) accounts
payable arising in the ordinary course of business, and (b) any obligations in
respect of prepayments for gas or oil production or gas or oil imbalances.
"Indenture" means this instrument as originally executed, or, if amended or
supplemented as herein provided, as so amended or supplemented and shall include
the form and terms of particular series of Debt Securities as contemplated
hereunder, whether or not a supplemental Indenture is entered into with respect
thereto.
"Interest Rate Protection Agreement" means, in respect of any Person, any
interest rate swap agreement, interest rate option agreement, interest rate cap
agreement, interest rate collar agreement, interest rate floor agreement or
other similar agreement or arrangement designed to protect such Person against
fluctuations in interest rates.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien, charge
or adverse claim affecting title or resulting in an encumbrance against real or
personal property or a security interest of any kind (including, without
limitation, any conditional sale or other title retention agreement or lease in
the nature thereof or any filing or agreement to file a financing statement as
debtor under the Uniform Commercial Code or any similar statute other than to
reflect ownership by a third party of property leased to the Company or any of
its Subsidiaries under a lease that is not in the nature of a conditional sale
or title retention agreement).
"Officers' Certificate" means a certificate signed by the Chairman of the Board,
the Vice Chairman, the President or any Vice President and by the Treasurer, the
Secretary or any Assistant Treasurer or Assistant Secretary of the Company. Each
such certificate shall include the statements provided for in Section 13.05, if
applicable.
"Opinion of Counsel" means an opinion in writing signed by legal counsel for the
Company (which counsel may be an employee of the Company), or outside counsel
for the Company. Each such opinion shall include the statements provided for in
Section 13.05, if applicable.
"Original Issue Discount Debt Security" means any Debt Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the maturity thereof pursuant to Section 6.01.
"Outstanding", when used with respect to any series of Debt Securities, means,
as of the date of determination, all Debt Securities of that series theretofore
authenticated and delivered under this Indenture, except:
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(a) Debt Securities of that series theretofore canceled by the Trustee
or delivered to the Trustee for cancellation;
(b) Debt Securities of that 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 Debt Securities;
provided, that, if such Debt Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made; and
(c) Debt Securities of that series which have been paid pursuant to
Section 2.09 or in exchange for or in lieu of which other Debt
Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Debt Securities in respect of which
there shall have been presented to the Trustee proof satisfactory to
it that such Debt Securities are held by a bona fide purchaser in
whose hands such Debt Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Debt Securities of any
series have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Debt Securities owned by the
Company or any other obligor upon the Debt Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Debt
Securities which a responsible officer of the Trustee actually knows
to be so owned shall be so disregarded. Debt Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Debt Securities and that the
pledgee is not the Company or any other obligor upon the Debt
Securities or an Affiliate of the Company or of such other obligor. In
determining whether the Holders of the requisite principal amount of
Outstanding Debt Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the
principal amount of an Original Issue Discount Debt Security that
shall be deemed to be Outstanding for such purposes shall be the
amount of the principal thereof that would be due and payable as of
the date of such determination upon a declaration of acceleration of
the maturity thereof pursuant to Section 6.01. In determining whether
the Holders of the requisite principal amount of the Outstanding Debt
Securities of any series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the
principal amount of a Debt Security denominated in one or more foreign
currencies or currency units that shall be deemed to be Outstanding
for such purposes shall be the Dollar Equivalent, determined in the
manner provided as contemplated by Section 2.03 on the date of
original issuance of such Debt Security, of the principal amount (or,
in the
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case of any Original Issue Discount Security, the Dollar
Equivalent on the date of original issuance of such Security of the
amount determined as provided in the preceding sentence above) of such
Debt Security.
"Pari Passu", as applied to the ranking of any Indebtedness of a Person in
relation to other Indebtedness of such Person, means that each such Indebtedness
either (a) is not subordinate in right of payment to any Indebtedness or (b) is
subordinate in right of payment to the same Indebtedness as is the other, and is
so subordinate to the same extent, and is not subordinate in right of payment to
each other or to any Indebtedness as to which the other is not so subordinate.
"Permitted Liens" means: (i) pledges or deposits by the Company or any
Restricted Subsidiary under workmen's compensation laws, unemployment insurance
laws, other types of social security benefits or similar legislation, or good
faith deposits in connection with bids, tenders or contracts (other than for the
payment of Indebtedness) or leases to which the Company or any Restricted
Subsidiary is a party, or deposits to secure public or statutory obligations or
deposits of cash or United States government bonds to secure surety or appeal
bonds to which the Company or any Restricted Subsidiary is a party, or deposits
as security for contested taxes or import duties or for the payment of rent, in
each case incurred by the Company or any Restricted Subsidiary in the ordinary
course of business consistent with past practice; (ii) Liens imposed by law,
such carriers', warehousemen's and mechanics' Liens, in each case for sums not
yet due from the Company or any Restricted Subsidiary or being contested in good
faith by appropriate proceedings by the Company or Restricted Subsidiary, as the
case may be, or other Liens arising out of judgments or awards against the
Company or any Restricted Subsidiary with respect to which the Company or such
Restricted Subsidiary, as the case may be, will then be prosecuting an appeal or
other proceedings for review; (iii) Liens for property taxes or other taxes,
assessments or governmental charges of the Company or any Restricted Subsidiary
not yet due or payable or subject to penalties for nonpayment or which are being
contested by the Company or such Restricted Subsidiary, as the case may be, in
good faith by appropriate proceedings; (iv) Liens in favor of issuers of
performance bonds and surety bonds; (v) survey exceptions, encumbrances,
easements or, reservations of, or rights of others for, licenses, rights-of-way,
sewers, electric lines, telegraph and telephone lines and other similar purposes
or zoning or other restrictions as to the use of real property of the Company or
any Restricted Subsidiary incidental to the ordinary course of conduct of the
business of the Company or such Restricted Subsidiary or as to the ownership of
properties of the Company or Restricted Subsidiary, which, in either case, were
not incurred in connection with Indebtedness and which do not in the aggregate
materially adversely affect the value of said properties or materially impair
their use in the operation of the business of the Company or any Restricted
Subsidiary; (vi) Liens to secure Indebtedness permitted under this Indenture;
(vii) Liens outstanding immediately after the date of issuing; (viii) Liens on
property, assets or shares of stock of any Restricted Subsidiary at the time
such Restricted Subsidiary became a Subsidiary of the Company; provided,
however, that (A) if any such Lien has been incurred in anticipation of such
transaction, such property, assets or shares of stock subject to such Lien will
have a fair market value at the date of the acquisition thereof not in excess of
the lesser of (1) the aggregate purchase price paid or owed by the Company in
connection with the acquisition of such Restricted Subsidiary and (2) the fair
market value of all property and
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assets of such Restricted Subsidiary and (B) any such Lien will not extend to
any other assets owned by the Company or any Restricted Subsidiary; (ix) Liens
on property or assets at the time at the time the Company or any Restricted
Subsidiary acquired such assets, including any acquisition by means of a merger
or consolidation with or into the Company or such Restricted Subsidiary;
provided, however, that (A) if any such Lien in incurred in anticipation of such
transaction, such property or assets subject to such Lien will have a fair
market value at the date of the acquisition thereof not in excess of the lesser
of (1) the aggregate purchase price paid or owed by the Company or such
Restricted Subsidiary in connection with the acquisition thereof and of any
other property and assets acquired simultaneously therewith and (2) the fair
market value of all such property and assets acquired by the Company or such
Restricted Subsidiary and (B) any such Lien will not extend to any other
property or assets owned by the Company or any Restricted Subsidiary; (x) Liens
securing Indebtedness or other obligations of a Restricted Subsidiary owing to
the Company or Subsidiary; (xi) Liens to secure any extension, renewal,
refinancing, replacement or refunding (or successive extensions, renewals,
refinancings, replacements or refundings), in whole or in part, of any
Indebtedness secured by Liens referred to in any of clauses (vii), (viii) and
(ix); provided, however, that any such Liens will be limited to all or part of
the same property or assets that secured the original Lien (plus improvements on
such property) and the aggregate principal amount of Indebtedness that is
secured by such Lien will not be increased to an amount greater than the sum of
(A) the outstanding principal amount, or, if greater, the committed amount, of
the Indebtedness described under clauses (vii), (viii) and (ix) at the time the
original Lien became a Permitted Lien under this Indenture and (B) an amount
necessary to pay any premiums, fees and other expenses Incurred by the Company
in connection with such refinancing, refunding, extension, renewal or
replacement; (xii) Liens on property or assets of the Company securing Interest
Rate Protection Agreements and Currency Exchange Protection Agreements so long
as the related Indebtedness is secured by a Lien on the same property securing
the relevant Interest Rate Protection Agreement or Currency Exchange Protection
Agreement; and (xiv) Liens on property or assets of the Company or any
Restricted Subsidiary securing Indebtedness (1) under purchase money obligation
or Capitalized Lease Obligations or (2) under Sale/Leaseback Transactions;
provided, that (A) the amount of Indebtedness incurred in any specific case does
not, at the time such Indebtedness is incurred, exceed the lesser of the cost or
fair market value of the property or asset acquired or constructed in connection
with such purchase money obligation or Capitalized Lease Obligation or subject
to such Sale/Leaseback Transactions, as the case may be, (B) such Lien will
attach to such property or asset upon acquisition of such property or asset and
or upon commencement of such Sale/Leaseback Transactions, as the case may be,
and (C) no property or asset of the Company or and Restricted Subsidiary (other
than the property or asset acquired or contracted in connection with such
purchase money Obligation or Capitalized Lease Obligation or subject to such
Sale/Leaseback Transaction, as the case may be) are subject to any Lien securing
such Indebtedness.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof or any other entity.
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"Place of Payment" means, when used with respect to the Debt Securities of any
series, the place or places where the principal of, and premium, if any, and
interest on, the Debt Securities of that series are payable as specified
pursuant to Section 2.03.
"Preferred Stock", as applied to the Capital Stock of any Person, means Capital
Stock of any class or classes (however designated) which is preferred as to the
payment of dividends or distributions, or as to the distribution of assets upon
any voluntary or involuntary liquidation or dissolution of such Person, over
shares of Capital Stock of any other class of such Person.
"Registered Holder" means the Person in whose name a Registered Security is
registered in the Debt Security Register (as defined in Section 2.07(a)).
"Registered Security" means any Debt Security registered as to principal and
interest in the Debt Security Register (as defined in Section 2.07(a)).
"Registrar" has the meaning set forth in Section 2.07(a).
"Representative" means the trustee, agent or representative (if any) for an
issue of Senior Indebtedness.
"Responsible Officer", when used with respect to the Trustee, means any officer
within the corporate trust administration group of the Trustee, including any
Vice President, any Assistant Vice President, any Treasurer, any Assistant
Treasurer, any trust officer or any other officer of the Trustee performing
functions similar to those performed by the persons who at the time shall be
such officers, and any other officer of the Trustee to whom corporate trust
matters are referred because of his or her knowledge of and familiarity with the
particular subject.
"Restricted Subsidiary" means any Subsidiary of the Company which has
substantially all of its assets located in, or carries and substantially all of
its business in, the United States.
"Sale/Leaseback Transaction" means an arrangement relating to property now owned
or hereafter acquired whereby the Company or a Restricted Subsidiary transfers
such property to a Person and the Company or a Subsidiary leases it from such
Person.
"Securities Act" means the Securities Act of 1933.
"Senior Indebtedness" means, as to any series of Debt Securities subordinated
pursuant to the provisions of Article XII, the Indebtedness of the Company
identified as Senior Indebtedness in the resolution of the Board of Directors
and accompanying Officers' Certificate or supplemental Indenture setting forth
the terms, including as to Subordination, of such series.
"Significant Subsidiary" means a Subsidiary of any Person that would be a
"significant subsidiary" as defined in Rule 405 under the Securities Act as in
effect on the date of this Indenture.
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"Stated Maturity" means, with respect to any security, the date specified in
such security as the fixed date on which the payment of principal of such
security is due and payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the repurchase of such
security at the option of the holder thereof upon the happening of any
contingency beyond the control of the issuer unless such contingency has
occurred).
"Subsidiary" of any Person means (i) any Person of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more of the Subsidiaries of that Person or a combination
thereof, and (ii) any partnership, joint venture or other Person in which such
Person or one or more of the Subsidiaries of that Person or a combination
thereof has the power to control by contract or otherwise the board of directors
or equivalent governing body or otherwise controls such entity.
"Subsidiary Guarantee" means the guarantee of the Subsidiary Guarantors as
provided in Article XIII.
"Subsidiary Guarantors" means any Subsidiary of the Company that executes a
Subsidiary Guarantee in accordance with the provisions of this Indenture, and
their respective successors and assigns.
"Trustee" initially means The First National Bank of Chicago and any other
Person or Persons appointed as such from time to time pursuant to Section 7.08,
and, subject to the provisions of Article VII, includes its or their successors
and assigns. If at any time there is more than one such Person, "Trustee" as
used with respect to the Debt Securities of any series shall mean the Trustee
with respect to the Debt Securities of that series.
"Trust Indenture Act" (except as herein otherwise expressly provided) means the
Trust Indenture Act of 1939 as in force at the date of this Indenture as
originally executed and, to the extent required by law, as amended.
"United States" means the United States of America (including the States and the
District of Columbia), its territories, its possessions and other areas subject
to its jurisdiction.
"United States Alien" means any Person who, for United States Federal income tax
purposes, is a foreign corporation, a nonresident alien individual, a
nonresident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more members of which is, for United States Federal income
tax purposes, a foreign corporation, a nonresident alien individual or a
nonresident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged and
which are not callable at the issuer's option.
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"Voting Power" means the total voting power represented by all outstanding
shares of all classes of Voting Stock.
"Voting Stock" as applied to the stock of any corporation, means stock of any
class or classes (however designated) having ordinary voting power for the
election of the directors of such corporation, other than stock having such
power only by reason of the happening of a contingency.
"Yield to Maturity" means the yield to maturity, calculated at the time of
issuance of a series of Debt Securities, or, if applicable, at the most recent
redetermination of interest on such series and calculated in accordance with
accepted financial practice.
Section 1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. This Indenture
is subject to the mandatory provisions of the Trust Indenture Act which are
incorporated by reference in and made a part of this Indenture. The following
Trust Indenture Act terms have the following meanings:
"indenture securities" means the Debt Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and any other
obligor on the Debt Securities.
All other Trust Indenture Act terms used in this Indenture that are defined by
the Trust Indenture Act, reference to another statute or defined by rules of the
Securities and Exchange Commission have the meanings assigned to them by such
definitions.
Section 1.03. RULES OF CONSTRUCTION. Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) "including" means including without limitation;
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(e) words in the singular include the plural and words in the plural
include the singular;
(f) 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;
(g) the masculine gender includes the feminine and the neuter;
(h) a "day" means a calendar day; and
(i) references to agreements and other instruments include subsequent
amendments and waivers but only to the extent not prohibited by this
Indenture.
ARTICLE II
DEBT SECURITIES
Section 2.01. FORMS GENERALLY. The Debt Securities of each series shall be in
substantially the form established without the approval of any Holder by or
pursuant to a resolution of the Board of Directors or in one or more Indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as the Company may deem
appropriate (and, if not contained in a supplemental Indenture entered into in
accordance with Article IX, as are not prohibited by the provisions of this
Indenture) or as may be required or appropriate to comply with any law or with
any rules made pursuant thereto or with any rules of any securities exchange on
which such series of Debt Securities may be listed, or to conform to general
usage, or as may, consistently herewith, be determined by the officers executing
such Debt Securities, as evidenced by their execution of the Debt Securities.
The definitive Debt Securities of each series shall be typewritten, printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Debt Securities,
as evidenced by their execution of such Debt Securities.
Section 2.02. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The Trustee's
Certificate of Authentication on all Debt Securities authenticated by the
Trustee shall be in substantially the following form:
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated:
As Trustee
By:
---
Authorized Signature
Section 2.03. PRINCIPAL AMOUNT; ISSUABLE IN SERIES. The aggregate principal
amount of Debt Securities which may be issued, executed, authenticated,
delivered and outstanding under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall be
established, without the approval of any Holders, in or pursuant to a resolution
of the Board of Directors and set forth in an Officers' Certificate, or
established in one or more Indentures supplemental hereto, prior to the issuance
of Debt Securities of any series any or all of the following:
(a) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of the series from all other Debt
Securities);
(b) any limit upon the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered
under this Indenture (except for Debt Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Debt Securities of the series pursuant to this Article
II);
(c) the date or dates on which the principal and premium, if any, of
the Debt Securities of the series are payable;
(d) the rate or rates (which may be fixed or variable) at which the
Debt Securities of the series shall bear interest, if any, or the
method of determining such rate or rates, the date or dates from which
such interest shall accrue, the interest payment dates on which such
interest shall be payable, or the method by which such date will be
determined, in the case of Registered Securities, the record dates for
the determination of Holders thereof to whom such interest is payable;
and the basis upon which interest will be calculated if other than
that of a 360-day year of twelve thirty-day months;
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(e) the place or places, if any, in addition to or instead of the
corporate trust office of the Trustee where the principal of, and
premium, if any, and interest on, Debt Securities of the series shall
be payable;
(f) the price or prices at which, the period or periods within which
and the terms and conditions upon which Debt Securities of the series
may be redeemed, in whole or in part, at the option of the Company or
otherwise;
(g) the obligation, if any, of the Company to redeem, purchase or
repay Debt Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof, and the
price or prices at which and the period or periods within which and
the terms and conditions upon which Debt Securities of the series
shall be redeemed, purchased or repaid, in whole or in part, pursuant
to such obligations;
(h) the terms, if any, upon which the Debt Securities of the series
may be convertible into or exchanged for Common Stock, Preferred Stock
(which may be represented by depositary shares), other Debt Securities
or warrants for Common Stock, Preferred Stock or Indebtedness or other
securities of any kind of the Company or any other obligor and the
terms and conditions upon which such conversion or exchange shall be
effected, including the initial conversion or exchange price or rate,
the conversion or exchange period and any other provision in addition
to or in lieu of those described herein;
(i) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Debt Securities of the series
shall be issuable;
(j) if the amount of principal of or any premium or interest on Debt
Securities of the series may be determined with reference to an index
or pursuant to a formula, the manner in which such amounts will be
determined;
(k) if the principal amount payable at the Stated Maturity of Debt
Securities of the series will not be determinable as of any one or
more dates prior to such Stated Maturity, the amount which will be
deemed to be such principal amount as of any such date for any
purpose, including the principal amount thereof which will be due and
payable upon any maturity other than the Stated Maturity or which will
be deemed to be Outstanding as of any such date (or, in any such case,
the manner in which such deemed principal amount is to be determined);
and the manner of determining the equivalent thereof in the currency
of the United States of America for purposes of the definition of
Dollar Equivalent;
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(l) any changes or additions to Article XI, including the addition of
additional covenants that may be subject to the covenant defeasance
option pursuant to Section 11.02(b)(ii);
(m) if other than such coin or Currency of the United States as at the
time of payment is legal tender for payment of public and private
debts, the coin or Currency or Currencies or units of two or more
Currencies in which payment of the principal of, and premium, if any,
and interest on, Debt Securities of the series shall be payable;
(n) if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof
pursuant to Section 6.01 or provable in bankruptcy pursuant to Section
6.02;
(o) the terms, if any, of the transfer, mortgage, pledge or assignment
as security for the Debt Securities of the series of any properties,
assets, moneys, proceeds, securities or other collateral, including
whether certain provisions of the Trust Indenture Act are applicable
and any corresponding changes to provisions of this Indenture as
currently in effect;
(p) any addition to or change in the Events of Default with respect to
the Debt Securities of the series and any change in the right of the
Trustee or the Holders to declare the principal of, and premium and
interest on, such Debt Securities due and payable;
(q) if the Debt Securities of the series shall be issued in whole or
in part in the form of a Global Security or Securities, the terms and
conditions, if any, upon which such Global Security or Securities may
be exchanged in whole or in part for other individual Debt Securities
in definitive registered form; and the Depositary for such Global
Security or Securities and the form of any legend or legends to be
borne by any such Global Security or Securities in addition to or in
lieu of the legend referred to in Section 2.15;
(r) any trustees, authenticating or paying agents, transfer agents or
registrars;
(s) the applicability of, and any addition to or change in the
covenants and definitions currently set forth in this Indenture or in
the terms currently set forth in Article X, including conditioning any
merger, conveyance, transfer or lease permitted by Article X upon the
satisfaction of an Indebtedness coverage standard by the Company and
Successor Company (as defined in Article X);
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(t) the terms, if any, of any Guarantee of the payment of principal
of, and premium, if any, and interest on, Debt Securities of the
series and any corresponding changes to the provisions of this
Indenture as currently in effect;
(u) the subordination, if any, of the Debt Securities of the series
pursuant to Article XII and any changes or additions to Article XII;
(v) with regard to Debt Securities of the series that do not bear
interest, the dates for certain required reports to the Trustee; and
(w) any other terms of the Debt Securities of the series (which terms
shall not be prohibited by the provisions of this Indenture).
All Debt Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to such
resolution of the Board of Directors and as set forth in such Officers'
Certificate or in any such Indenture supplemental hereto.
Section 2.04. EXECUTION OF DEBT SECURITIES. The Debt Securities shall be signed
on behalf of the Company by its Chairman of the Board, its Vice Chairman, its
President or a Vice President and by its Secretary, an Assistant Secretary, a
Treasurer or an Assistant Treasurer. Such signatures upon the Debt Securities
may be the manual or facsimile signatures of the present or any future such
authorized officers and may be imprinted or otherwise reproduced on the Debt
Securities. The seal of the Company, if any, may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on the
Debt Securities.
Only such Debt Securities as shall bear thereon a certificate of authentication
substantially in the form hereinbefore recited, signed manually by the Trustee,
shall be entitled to the benefits of this Indenture or be valid or obligatory
for any purpose. Such certificate by the Trustee upon any Debt Security executed
by the Company shall be conclusive evidence that the Debt Security so
authenticated has been duly authenticated and delivered hereunder.
In case any officer of the Company who shall have signed any of the Debt
Securities shall cease to be such officer before the Debt Securities so signed
shall have been authenticated and delivered by the Trustee, or disposed of by
the Company, such Debt Securities nevertheless may be authenticated and
delivered or disposed of as though the Person who signed such Debt Securities
had not ceased to be such officer of the Company; and any Debt Security may be
signed on behalf of the Company by such Persons as, at the actual date of the
execution of such Debt Security, shall be the proper officers of the Company,
although at the date of such Debt Security or of the execution of this Indenture
any such Person was not such officer.
Section 2.05. AUTHENTICATION AND DELIVERY OF DEBT SECURITIES. At any time and
from time to time after the execution and delivery of this Indenture, the
Company may deliver Debt Securities of any series executed by the Company to the
Trustee for authentication, and the Trustee
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shall thereupon authenticate and deliver such Debt Securities to or upon a
Company Order. In authenticating such Debt Securities, and accepting the
additional responsibilities under this Indenture in relation to such Debt
Securities, the Trustee shall be entitled to receive, and (subject to Section
7.01) shall be fully protected in relying upon:
(a) a copy of any resolution or resolutions of the Board of Directors,
certified by the Secretary or Assistant Secretary of the Company,
authorizing the terms of issuance of any series of Debt Securities;
(b) an executed supplemental Indenture, if any;
(c) an Officers' Certificate; and
(d) an Opinion of Counsel prepared in accordance with Section 13.05
which shall state:
(i) that the terms of such Debt Securities have been
established by or pursuant to a resolution of the Board of
Directors or by a supplemental Indenture as permitted by
Section 2.03 in conformity with the provisions of this
Indenture; and
(ii) that such Debt Securities, 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 except as (A) the enforceability
thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, or
similar laws affecting the enforcement of creditors' rights
generally and (B) rights of acceleration and the
availability of equitable remedies may be limited by
equitable principles (whether in a proceeding at law or in
equity);
Such Opinion of Counsel need express no opinion as to
whether a court in the United States would render a money
judgment in a currency other than that of the United States.
The Trustee shall have the right to decline to authenticate and deliver any Debt
Securities under this Section 2.05 if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken or if the Trustee in good
faith by its board of directors or trustees, executive committee or a trust
committee of directors, trustees or vice presidents shall determine that such
action would expose the Trustee to personal liability to existing Holders.
The Trustee may appoint an authenticating agent reasonably acceptable to the
Company to authenticate Debt Securities of any series. Unless limited by the
terms of such appointment, an
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authenticating agent may authenticate Debt Securities whenever the Trustee may
do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent has the same
rights as any Registrar, paying agent or agent for service of notices and
demands.
Unless otherwise provided in the form of Debt Security for any series, each Debt
Security shall be dated the date of its authentication.
Section 2.06. DENOMINATION OF DEBT SECURITIES. Unless otherwise provided in the
form of Debt Security for any series, the Debt Securities of each series shall
be issuable only as Registered Securities in such denominations as shall be
specified or contemplated by Section 2.03. In the absence of any such
specification with respect to the Debt Securities of any series, the Debt
Securities of such series shall be issuable in denominations of $1,000 and any
integral multiple thereof.
Section 2.07. REGISTRATION OF TRANSFER AND EXCHANGE.
(a) The Company shall keep or cause to be kept a register for each
series of Registered Securities issued hereunder (hereinafter
collectively referred to as the "Debt Security Register"), in which,
subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Registered Securities
and the transfer of Registered Securities as in this Article II
provided. At all reasonable times the Debt Security Register shall be
open for inspection by the Trustee. Subject to Section 2.15, upon due
presentment for registration of transfer of any Registered Security at
any office or agency to be maintained by the Company in accordance
with the provisions of Section 4.02, the Company shall execute and the
Trustee shall authenticate and deliver in the name of the transferee
or transferees a new Registered Security or Registered Securities of
authorized denominations for a like aggregate principal amount.
Unless and until otherwise determined by the Company by resolution of
the Board of Directors, the register of the Company for the purpose of
registration, exchange or registration of transfer of the Registered
Securities shall be kept at the corporate trust office of the Trustee
and, for this purpose, the Trustee shall be designated "Registrar".
Registered Securities of any series (other than a Global Security,
except as set forth below) may be exchanged for a like aggregate
principal amount of Registered Securities of the same series of other
authorized denominations. Subject to Section 2.15, Registered
Securities to be exchanged shall be surrendered at the office or
agency to be maintained by the Company as provided in Section 4.02,
and the Company shall execute and the Trustee shall authenticate and
deliver in exchange
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therefor the Registered Security or Registered Securities which the
Holder making the exchange shall be entitled to receive.
(b) All Registered Securities presented or surrendered for
registration of transfer, exchange or payment shall (if so required by
the Company, the Trustee or the Registrar) be duly endorsed or be
accompanied by a written instrument or instruments of transfer, in
form satisfactory to the Company, the Trustee and the Registrar, duly
executed by the Registered Holder or his attorney duly authorized in
writing.
All Debt Securities issued in exchange for or upon transfer of Debt Securities
shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture as the Debt Securities
surrendered for such exchange or transfer.
No service charge shall be made for any exchange or registration of transfer of
Debt Securities (except as provided by Section 2.09), but the Company may
require payment of a sum sufficient to cover any tax, fee, assessment or other
governmental charge that may be imposed in relation thereto, other than those
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 any Debt Securities for a period of 15 days next preceding any mailing
of notice of redemption of Debt Securities of such series or (ii) to register
the transfer of or exchange any Debt Securities selected, called or being called
for redemption.
Prior to the due presentation for registration of transfer of any Debt Security,
the Company, the Trustee, any paying agent or any Registrar may deem and treat
the Person in whose name a Debt Security is registered as the absolute owner of
such Debt Security for the purpose of receiving payment of principal of, and
premium, if any, and interest on, such Debt Security and for all other purposes
whatsoever, whether or not such Debt Security is overdue, and none of the
Company, the Trustee, any paying agent or Registrar shall be affected by notice
to the contrary.
None of the Company, the Trustee, any agent of the Trustee, any paying agent or
any 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.
Section 2.08. TEMPORARY DEBT SECURITIES. Pending the preparation of definitive
Debt Securities of any series, the Company may execute and the Trustee shall
authenticate and deliver temporary Debt Securities (printed, lithographed,
photocopied, typewritten or otherwise produced) of any authorized denomination,
and substantially in the form of the definitive Debt Securities in lieu of which
they are issued, in registered form and with such omissions, insertions and
variations as may be appropriate for temporary Debt Securities, all as may be
determined by the Company with
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the concurrence of the Trustee. Temporary Debt Securities may contain such
reference to any provisions of this Indenture as may be appropriate. Every
temporary Debt Security shall be executed by the Company and be authenticated
by the Trustee upon the same conditions and in substantially the same manner,
and with like effect, as the definitive Debt Securities.
If temporary Debt Securities of any series are issued, the Company will cause
definitive Debt Securities of such series to be prepared without unreasonable
delay. Unless otherwise specified, (a) after the preparation of definitive Debt
Securities of such series, the temporary Debt Securities of such series shall be
exchangeable for definitive Debt Securities of such series upon surrender of the
temporary Debt Securities of such series at the office or agency of the Company
at a Place of Payment for such series, without charge to the Holder thereof,
except as provided in Section 2.07 in connection with a transfer, and (b) upon
surrender for cancellation of any one or more temporary Debt Securities of any
series, the Company shall execute and the Trustee shall authenticate and deliver
in exchange therefor a like principal amount of definitive Debt Securities of
the same series of authorized denominations and of like tenor. Until so
exchanged, temporary Debt Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Debt Securities
of such series.
Upon any exchange of a portion of a temporary Global Security for a definitive
Global Security or for the individual Debt Securities represented thereby
pursuant to Section 2.07 or this Section 2.08, the temporary Global Security
shall be endorsed by the Trustee to reflect the reduction of the principal
amount evidenced thereby, whereupon the principal amount of such temporary
Global Security shall be reduced for all purposes by the amount to be exchanged
and endorsed.
Section 2.09. MUTILATED, DESTROYED, LOST OR STOLEN DEBT SECURITIES. If (a) any
mutilated Debt Security is surrendered to the Trustee at its corporate trust
office or (b) the Company and the Trustee receive evidence to their satisfaction
of the destruction, loss or theft of any Debt Security, 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 any paying agent harmless, and neither the Company
nor the Trustee receives notice that such Debt Security has been acquired by a
bona fide purchaser, then the Company shall execute and, upon a Company Order,
the Trustee shall authenticate and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Debt Security, a new Debt Security of
the same series of like tenor, form, terms and principal amount, bearing a
number not contemporaneously Outstanding. Upon the issuance of any substituted
Debt Security, the Company may require the payment of a sum sufficient to cover
any tax, fee, assessment or other governmental charge that may be imposed in
relation thereto and any other expenses connected therewith. In case any Debt
Security which has matured or is about to mature or which has been called for
redemption shall become mutilated or be destroyed, lost or stolen, the Company
may, instead of issuing a substituted Debt Security, pay or authorize the
payment of the same (without surrender thereof except in the case of a mutilated
Debt Security) if the applicant for such payment shall furnish the Company and
the Trustee with such security or indemnity as either may require to save it
harmless from all risk, however remote, and, in case of destruction, loss or
theft, evidence to
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the satisfaction of the Company and the Trustee of the destruction, loss or
theft of such Debt Security and of the ownership thereof.
Every substituted Debt Security of any series, issued pursuant to the provisions
of this Section 2.09 by virtue of the fact that any Debt Security is destroyed,
lost or stolen shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Debt Security shall be
found at any time, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Debt Securities of that
series duly issued hereunder. All Debt Securities shall be held and owned upon
the express condition that the foregoing provisions are exclusive with respect
to the replacement or payment of mutilated, destroyed, lost or stolen Debt
Securities, and shall preclude any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to the contrary
with respect to the replacement or payment of negotiable instruments or other
securities without their surrender.
Section 2.10. CANCELLATION OF SURRENDERED DEBT SECURITIES. All Debt Securities
surrendered for payment, redemption, registration of transfer or exchange shall,
if surrendered to the Company or any paying agent or a Registrar, be delivered
to the Trustee for cancellation by it, or if surrendered to the Trustee, shall
be canceled by it, and no Debt Securities shall be issued in lieu thereof except
as expressly permitted by any of the provisions of this Indenture. All canceled
Debt Securities held by the Trustee shall be destroyed (subject to the record
retention requirements of the Exchange Act) and certification of their
destruction delivered to the Company, upon request. On request of the Company,
the Trustee shall deliver to the Company canceled Debt Securities held by the
Trustee. If the Company shall acquire any of the Debt Securities, however, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented thereby unless and until the same are delivered or
surrendered to the Trustee for cancellation. The Company may not issue new Debt
Securities to replace Debt Securities it has redeemed, paid or delivered to the
Trustee for cancellation.
Section 2.11. PROVISIONS OF THE INDENTURE AND DEBT SECURITIES FOR THE SOLE
BENEFIT OF THE PARTIES AND THE HOLDERS. Nothing in this Indenture or in the Debt
Securities, expressed or implied, shall give or be construed to give to any
Person, other than the parties hereto, the Holders or any Registrar or paying
agent, any legal or equitable right, remedy or claim under or in respect of this
Indenture, or under any covenant, condition or provision herein contained; all
its covenants, conditions and provisions being for the sole benefit of the
parties hereto, the Holders and any Registrar and paying agents.
Section 2.12. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
(a) Interest on any Registered Security that 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 is
registered at the close of business on the regular record date for
such interest notwithstanding the cancellation of such Registered
Security upon any transfer or exchange subsequent to the regular
record date. Payment of
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interest on Registered Securities shall be made at the corporate
trust office of the Trustee (except as otherwise specified pursuant
to Section 2.03), or at the option of the Company, by check mailed
to the address of the Person entitled thereto as such address shall
appear in the Debt Security Register or, if provided pursuant to
Section 2.03 and in accordance with arrangements satisfactory to the
Trustee, at the option of the Registered Holder by wire transfer to
an account designated by the Registered Holder.
(b) Subject to the foregoing provisions of this Section 2.12 and
Section 2.17, each Debt Security of a particular series delivered
under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Debt Security of the same series shall
carry the rights to interest accrued and unpaid, and to accrue, which
were carried by such other Debt Security.
Section 2.13. SECURITIES DENOMINATED IN FOREIGN CURRENCIES.
(a) Except as otherwise specified pursuant to Section 2.03 for
Registered Securities of any series, payment of the principal of, and
premium, if any, and interest on, Registered Securities of such series
will be made in Dollars.
(b) For the purposes of calculating the principal amount of Debt
Securities of any series denominated in a Foreign Currency or in units
of two or more Foreign Currencies (including Euro) for any purpose
under this Indenture, the principal amount of such Debt Securities at
any time Outstanding shall be deemed to be the Dollar Equivalent of
such principal amount as of the date of any such calculation.
In the event any Foreign Currency or currencies or units of two or more
Currencies in which any payment with respect to any series of Debt Securities
may be made ceases to be a freely convertible Currency on United States Currency
markets, for any date thereafter on which payment of principal of, or premium,
if any, or interest on, the Debt Securities of a series is due, the Company
shall select the Currency of payment for use on such date, all as provided in
the Debt Securities of such series. In such event, the Company shall, as
provided in the Debt Securities of such series, notify the Trustee of the
Currency which it has selected to constitute the funds necessary to meet the
Company's obligations on such payment date and of the amount of such Currency to
be paid. Such amount shall be determined as provided in the Debt Securities of
such series. The payment to the Trustee with respect to such payment date shall
be made by the Company solely in the Currency so selected.
Section 2.14. WIRE TRANSFERS. Notwithstanding any other provision to the
contrary in this Indenture, the Company may make any payment of monies required
to be deposited with the Trustee on account of principal of, or premium, if any,
or interest on, the Debt Securities (whether pursuant to optional or mandatory
redemption payments, interest payments or otherwise) by wire transfer in
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immediately available funds to an account designated by the Trustee on or before
the date such moneys are to be paid to the Holders of the Debt Securities in
accordance with the terms hereof.
Section 2.15. SECURITIES ISSUABLE IN THE FORM OF A GLOBAL SECURITY.
(a) If the Company shall establish pursuant to Sections 2.01 and
2.03 that the Debt Securities of a particular 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 or its agent shall, in
accordance with Section 2.05, authenticate and deliver, such Global
Security or Securities, which (i) shall represent, and shall be
denominated in an amount equal to the aggregate principal amount of,
the Outstanding Debt Securities of such series to be represented by
such Global Security or Securities, or such portion thereof as the
Company shall specify in an Officer's Certificate, (ii) shall be
registered in the name of the Depositary for such Global Security or
Securities or its nominee, (iii) shall be delivered by the Trustee or
its agent to the Depositary or pursuant to the Depositary's
instruction and (iv) shall bear a legend substantially to the
following effect: 'UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF
OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE
HEREOF', or such other legend as may then be required by the
Depositary for such Global Security or Securities.
(b) Notwithstanding any other provision of this Section 2.15 or of
Section 2.07 to the contrary, and subject to the provisions of
paragraph (c) below, unless the terms of a Global Security expressly
permit such Global Security to be exchanged in whole or in part for
definitive Debt Securities in registered form, a Global Security may
be transferred, in whole but not in part and in the manner provided in
Section 2.07, only
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by the Depositary to a nominee of the Depositary for such Global
Security, or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary, or by the Depositary or a nominee
of the Depositary to a successor Depositary for such Global Security
selected or approved by the Company, or to a nominee of such
successor Depositary.
(c) (i) If at any time the Depositary for a Global Security or
Securities notifies the Company that it is unwilling or
unable to continue as Depositary for such Global Security or
Securities or if at any time the Depositary for the Debt
Securities for such series shall no longer be eligible or in
good standing under the Exchange Act or other applicable
statute, rule or regulation, the Company shall appoint a
successor Depositary with respect to such Global Security or
Securities. If a successor Depositary for such Global
Security or Securities is not appointed by the Company
within 90 days after the Company receives such notice or
becomes aware of such ineligibility, the Company shall
execute, and the Trustee or its agent, upon receipt of a
Company Order for the authentication and delivery of such
individual Debt Securities of such series in exchange for
such Global Security, will authenticate and deliver,
individual Debt Securities of such series of like tenor and
terms in definitive form in an aggregate principal amount
equal to the principal amount of the Global Security in
exchange for such Global Security or Securities.
(ii) The Company may at any time and in its sole discretion
determine that the Debt Securities of any series or portion
thereof issued or issuable 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 individual Debt
Securities of such series in exchange in whole or in part
for such Global Security, will authenticate and deliver
individual Debt Securities of such series of like tenor and
terms in definitive form in an aggregate principal amount
equal to the principal amount of such series or portion
thereof in exchange for such Global Security or Securities.
(iii) If specified by the Company pursuant to Sections 2.01
and 2.03 with respect to Debt Securities issued or issuable
in the form of a Global Security, the Depositary for such
Global Security may surrender such Global Security in
exchange in whole or in part for individual Debt Securities
of such series of like tenor and terms in definitive form on
such terms as are acceptable to the Company, the Trustee and
such Depositary. Thereupon the Company shall execute, and
the Trustee or its agent upon receipt of a Company Order for
the authentication and delivery of definitive Debt
Securities of such series shall authenticate and deliver,
without service charge, (A) to each Person specified by such
Depositary a new Debt Security or Securities of the same
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series of like tenor and terms and of any authorized
denomination as requested by such Person in 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 authorized denomination equal to the difference, if
any, between the principal amount of the surrendered Global
Security and the aggregate principal amount of Debt
Securities delivered to Holders thereof.
(iv) In any exchange provided for in any of the preceding
three paragraphs, the Company will execute and the Trustee
or its agent will authenticate and deliver individual Debt
Securities. Upon the exchange of the entire principal
amount of a Global Security for individual Debt Securities,
such Global Security shall be canceled by the Trustee or its
agent. Except as provided in the preceding paragraph,
Registered Securities issued in exchange for a Global
Security pursuant to this Section 2.15 shall be registered
in such names and in such authorized denominations as the
Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or the Registrar. The
Trustee or the Registrar shall deliver such Registered
Securities to the Persons in whose names such Registered
Securities are so registered.
(v) Payments in respect of the principal of and interest on
any Debt Securities registered in the name of the Depositary
or its nominee will be payable to the Depositary or such
nominee in its capacity as the registered owner of such
Global Security. The Company and the Trustee may treat the
Person in whose name the Debt Securities, including the
Global Security, are registered as the owner thereof for the
purpose of receiving such payments and for any and all other
purposes whatsoever. None of the Company, the Trustee, any
Registrar, the paying agent or any agent of the Company or
the Trustee will have any responsibility or liability for
(A) any aspect of the records relating to or payments made
on account of the beneficial ownership interests of the
Global Security by the Depositary or its nominee or any of
the Depositary's direct or indirect participants, or for
maintaining, supervising or reviewing any records of the
Depositary, its nominee or any of its direct or indirect
participants relating to the beneficial ownership interests
of the Global Security, (B) the payments to the beneficial
owners of the Global Security of amounts paid to the
Depositary or its nominee, or (C) any other matter relating
to the actions and practices of the Depositary, its nominee
or any of its direct or indirect participants. None of the
Company, the Trustee or any such agent will be liable for
any delay by the Depositary, its nominee, or any of its
direct or indirect participants in identifying the
beneficial owners of the Debt Securities, and the Company
and the Trustee may conclusively rely on, and will be
protected in relying on, instructions from the Depositary or
its
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nominee for all purposes (including with respect to the
registration and delivery, and the respective principal
amounts, of the Debt Securities to be issued).
Section 2.16. MEDIUM TERM SECURITIES. Notwithstanding any contrary provision
herein, if all Debt Securities of a series are not to be originally issued at
one time, it shall not be necessary for the Company to deliver to the Trustee an
Officers' Certificate, resolutions of the Board of Directors, supplemental
Indenture, Opinion of Counsel or written order or any other document otherwise
required pursuant to Section 2.01, 2.03, 2.05 or 13.05 at or prior to the time
of authentication of each Debt Security of such series if such documents are
delivered to the Trustee or its agent at or prior to the authentication upon
original issuance of the first such Debt Security of such series to be issued;
provided, that any subsequent request by the Company to the Trustee to
authenticate Debt Securities of such series upon original issuance shall
constitute a representation and warranty by the Company that, as of the date of
such request, the statements made in the Officers' Certificate delivered
pursuant to Section 2.05 or 13.05 shall be true and correct as if made on such
date and that the Opinion of Counsel delivered at or prior to such time of
authentication of an original issuance of Debt Securities shall specifically
state that it shall relate to all subsequent issuances of Debt Securities of
such series that are identical to the Debt Securities issued in the first
issuance of Debt Securities of such series.
A Company Order delivered by the Company to the Trustee in the circumstances set
forth in the preceding paragraph, may provide that Debt Securities which are the
subject thereof will be authenticated and delivered by the Trustee or its agent
on original issue from time to time upon the telephonic or written order of
Persons designated in such written order (any such telephonic instructions to be
promptly confirmed in writing by such Person) and that such Persons are
authorized to determine, consistent with the Officers' Certificate, supplemental
Indenture or resolution of the Board of Directors relating to such written
order, such terms and conditions of such Debt Securities as are specified in
such Officers' Certificate, supplemental Indenture or such resolution.
Section 2.17. DEFAULTED INTEREST.
Any interest on any Debt Security of a particular series which is
payable, but is not punctually paid or duly provided for, on the dates
and in the manner provided in the Debt Securities of such series and
in this Indenture (herein called "Defaulted Interest") shall forthwith
cease to be payable to the Registered Holder thereof on the relevant
record date by virtue of having been such Registered Holder, and such
Defaulted Interest (plus interest on such Defaulted Interest to the
extent lawful) may be paid by the Company, at its election in each
case, as provided in clause (i) or (ii) below:
(i) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered
Securities of such series are
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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
promptly notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each such
Registered Security of such series and the date of the
proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon
the Trustee shall fix a special record date for the
payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the date
of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of
such special record date and, in the name and at the
expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the special record
date therefor to be mailed, first class postage pre-paid,
to each Holder thereof at its address as it appears in the
Security Register, not less than 10 days prior to such
special record date. Notice of the proposed payment of
such Defaulted Interest and the special record date
therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Registered
Securities of such series are registered at the close of
business on such special record date.
(ii) The Company may make payment of any Defaulted Interest
on the Registered Securities of such series in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which the Registered Securities of
such series may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to
this clause, such manner of payment shall be deemed
practicable by the Trustee.
Section 2.18. JUDGMENTS. The Company may provide pursuant to Section 2.03 for
Debt Securities of any series that (a) the obligation, if any, of the Company to
pay the principal of, and premium, if any, and interest on, the Debt Securities
of any series in a Foreign Currency or Dollars (the "Designated Currency") as
may be specified pursuant to Section 2.03 is of the essence and agrees that, to
the fullest extent possible under applicable law, judgments in respect of Debt
Securities of such series 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 on, such Debt Securities 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
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banking procedures, purchase with the sum paid in such other Currency (after
any premium and cost of exchange) on the business day in the country of issue
of the Designated Currency or in the international banking community (in the
case of a composite currency) immediately following the day on which such
Holder receives such payment; (c) if the amount in the Designated Currency
that may be so purchased for any reason falls short of the amount originally
due, the Company shall pay such additional amounts as may be necessary to
compensate for such shortfall; and (d) any obligation of the Company not
discharged by such payment shall be due as a separate and independent
obligation and, until discharged as provided herein, shall continue in full
force and effect.
Section 2.19. CUSIP NUMBERS. The Company in issuing the Securities may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders; provided
that any such notice may state that no representation is made as to the accuracy
of such numbers either as printed on the Securities or as contained in any
notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE III
REDEMPTION OF DEBT SECURITIES
Section 3.01. APPLICABILITY OF ARTICLE. The provisions of this Article shall be
applicable to the Debt Securities of any series which are redeemable before
their Stated Maturity except as otherwise specified as contemplated by Section
2.03 for Debt Securities of such series.
Section 3.02. NOTICE OF REDEMPTION; SELECTION OF DEBT SECURITIES. In case the
Company shall desire to exercise the right to redeem all or, as the case may be,
any part of the Debt Securities of any series in accordance with their terms, a
resolution of the Board of Directors of the Company or a supplemental Indenture,
the Company shall fix a date for redemption and shall give notice of such
redemption at least 30 and not more than 60 days prior to the date fixed for
redemption to the Holders of Debt Securities of such series so to be redeemed as
a whole or in part, in the manner provided in Section 13.03. The notice if given
in the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives such notice. In any case, failure to
give such notice or any defect in the notice to the Holder of any Debt Security
of a series designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Debt Security of
such series.
Each such notice of redemption shall specify:
(a) the date fixed for redemption,
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(b) the redemption price at which Debt Securities of such series are
to be redeemed,
(c) that the redemption is for a sinking fund payment (if applicable),
(d) that, if the Company defaults in making such redemption payment or
if the Debt Securities of that series are subordinated pursuant to the
terms of Article XII, the paying agent is prohibited from making such
payment pursuant to the terms of this Indenture,
(e) that on and after said date any interest thereon or on the
portions thereof to be redeemed will cease to accrue,
(f) that, if the Company defaults in making such redemption payment or
if the Debt Securities of that series are subordinated pursuant to the
terms of Article XII, the paying agent is prohibited from making such
payment pursuant to the terms of this Indenture,
(g) that in the case of Original Issue Discount Securities original
issue discount accrued after the date fixed for redemption will cease
to accrue, the terms of the Debt Securities of that series pursuant to
which the Debt Securities of that series are being redeemed, and
(h) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the
Debt Securities of that series.
If less than all the Debt Securities of a series are to be redeemed the notice
of redemption shall specify the CUSIP numbers of the Debt Securities of that
series to be redeemed. In case any Debt Security of a series is to be redeemed
in part only, the notice of redemption shall state the portion of the principal
amount thereof to be redeemed and shall state that on and after the date fixed
for redemption, upon surrender of such Debt Security, a new Debt Security or
Debt Securities of that series in principal amount equal to the unredeemed
portion thereof will be issued.
At least 60 days before the redemption date unless the Trustee consents to a
shorter period, the Company shall give notice to the Trustee of the redemption
date, the principal amount of Debt Securities to be redeemed and the series and
terms of the Debt Securities pursuant to which such redemption will occur. Such
notice shall be accompanied by an Officers' Certificate and an Opinion of
Counsel from the Company to the effect that such redemption will comply with the
conditions herein. If fewer than all the Debt Securities of a series are to be
redeemed, the record date relating to such redemption shall be selected by the
Company and given to the Trustee, which record date shall be not less than 15
days after the date of notice to the Trustee.
On or prior to the redemption date for any Registered Securities, 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
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hold in trust) an amount of money in the Currency in which such Debt
Securities are denominated (except as provided pursuant to Section 2.03)
sufficient to pay the redemption price of such Registered Securities or any
portions thereof that are to be redeemed on that date. If less than all the
Debt Securities of like tenor and terms of a series are to be redeemed (other
than pursuant to mandatory sinking fund redemptions) the Trustee shall select,
on a pro rata basis, by lot or by such other method as in its sole discretion
it shall deem appropriate and fair, the Debt Securities of that series or
portions thereof (in multiples of $1,000) to be redeemed. In any case where
more than one Registered Security of such series is registered in the same
name, the Trustee in its discretion may treat the aggregate principal amount
so registered as if it were represented by one Registered Security of such
series. The Trustee shall promptly notify the Company in writing of the Debt
Securities selected for redemption and, in the case of any Debt Securities
selected for partial redemption, the principal amount thereof to be redeemed.
If any Debt Security called for redemption shall not be so paid upon surrender
thereof on such redemption date, the principal, premium, if any, and interest
shall bear interest until paid from the redemption date at the rate borne by
the Debt Securities of that series. If less than all the Debt Securities of
unlike tenor and terms of a series are to be redeemed, the particular Debt
Securities to be redeemed shall be selected by the Company. Provisions of this
Indenture that apply to Debt Securities called for redemption also apply to
portions of Debt Securities called for redemption.
Section 3.03. PAYMENT OF DEBT SECURITIES CALLED FOR REDEMPTION. If notice of
redemption has been given as provided in Section 3.03, the Debt Securities or
portions of Debt Securities of the series with respect to which such notice has
been given shall become due and payable on the date and at the Place or Places
of Payment stated in such notice at the applicable redemption price, together
with any interest accrued to the date fixed for redemption, and on and after
said date (unless the Company shall default in the payment of such Debt
Securities at the applicable redemption price, together with any interest
accrued to said date) any interest on the Debt Securities or portions of Debt
Securities of any series so called for redemption shall cease to accrue, any
original issue discount in the case of Original Issue Discount Securities shall
cease to accrue. On presentation and surrender of such Debt Securities at the
Place or Places of Payment in said notice specified, the said Debt Securities or
the specified portions thereof shall be paid and redeemed by the Company at the
applicable redemption price, together with any interest accrued thereon to the
date fixed for redemption.
Any Debt Security that is to be redeemed only in part shall be surrendered at
the corporate trust office or such other office or agency of the Company as is
specified pursuant to Section 2.03 with, if the Company, the Registrar or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company, the Registrar 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 Debt Security without service charge, a new Debt Security or
Debt Securities of the same series, of like tenor and form, 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 Debt
Security so surrendered; except that if a Global Security is so surrendered,
the Company shall execute, and the Trustee shall authenticate and
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deliver to the Depositary for such Global Security, without service charge, a
new Global Security in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Global Security so surrendered. In
the case of a Debt Security providing appropriate space for such notation, at
the option of the Holder thereof, the Trustee, in lieu of delivering a new
Debt Security or Debt Securities as aforesaid, may make a notation on such
Debt Security of the payment of the redeemed portion thereof.
Section 3.04. MANDATORY AND OPTIONAL SINKING FUNDS. The minimum amount of any
sinking fund payment provided for by the terms of Debt Securities of any series,
resolution of the Board of Directors or a supplemental Indenture 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 Debt Securities of any series,
resolution of the Board of Directors or a supplemental Indenture is herein
referred to as an "optional sinking fund payment".
Unless otherwise specified in the terms of Debt Securities of any series or the
related resolution or supplemental indenture, in lieu of making all or any part
of any mandatory sinking fund payment with respect to any Debt Securities of
such series in cash, the Company may at its option (a) deliver to the Trustee
Debt Securities of that series theretofore purchased or otherwise acquired by
the Company or (b) receive credit for the principal amount of Debt Securities of
that series which have been redeemed either at the election of the Company
pursuant to the terms of such Debt Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such Debt
Securities, resolution or supplemental Indenture; provided, that such Debt
Securities have not been previously so credited. Such Debt Securities shall be
received and credited for such purpose by the Trustee at the redemption price
specified in such Debt Securities, resolution or supplemental Indenture for
redemption through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
Section 3.05. REDEMPTION OF DEBT SECURITIES FOR SINKING FUND. Not less than 60
days prior to each sinking fund payment date for any series of Debt Securities,
the Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series pursuant to the
terms of that series, any resolution or supplemental Indenture, the portion
thereof, if any, which is to be satisfied by payment of cash in the Currency in
which the Debt Securities of such series are denominated (except as provided
pursuant to Section 2.03) and the portion thereof, if any, which is to be
satisfied by delivering and crediting Debt Securities of that series pursuant to
this Section 3.05 (which Debt Securities, if not previously redeemed, will
accompany such certificate) and whether the Company intends to exercise its
right to make any permitted optional sinking fund payment with respect to such
series. Such certificate shall also state that no Event of Default has occurred
and is continuing with respect to such series. Such certificate shall be
irrevocable and upon its delivery the Company shall be obligated to make the
cash payment or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Company to deliver such
certificate (or to deliver the Debt Securities specified in this paragraph)
shall not constitute a Default, but such failure shall require that the sinking
fund payment due on the next succeeding sinking fund payment date for that
series shall be paid entirely in cash
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and shall be sufficient to redeem the principal amount of such Debt Securities
subject to a mandatory sinking fund payment without the option to deliver or
credit Debt Securities as provided in this Section 3.05 and without the right
to make any optional sinking fund payment, if any, with respect to such
series.
Any sinking fund payment or payments (mandatory or optional) made in cash plus
any unused balance of any preceding sinking fund payments made in cash which
shall equal or exceed $100,000 (or a lesser sum if the Company shall so request)
with respect to the Debt Securities of any particular series shall be applied by
the Trustee on the sinking fund payment date on which such payment is made (or,
if such payment is made before a sinking fund payment date, on the sinking fund
payment date following the date of such payment) to the redemption of such Debt
Securities at the Redemption Price specified in such Debt Securities, resolution
or supplemental Indenture for operation of the sinking fund together with any
accrued interest to the date fixed for redemption. Any sinking fund moneys not
so applied or allocated by the Trustee to the redemption of Debt Securities
shall be added to the next cash sinking fund payment received by the Trustee for
such series and, together with such payment, shall be applied in accordance with
the provisions of this Section 3.05. Any and all sinking fund moneys with
respect to the Debt Securities of any particular series held by the Trustee on
the last sinking fund payment date with respect to Debt Securities of such
series and not held for the payment or redemption of particular Debt Securities
shall be applied by the Trustee, together with other moneys, if necessary, to be
deposited sufficient for the purpose, to the payment of the principal of the
Debt Securities of that series at its Stated Maturity.
The Trustee shall select the Debt Securities to be redeemed upon such sinking
fund payment date in the manner specified in the last paragraph of Section 3.02
and the Company shall cause notice of the redemption thereof to be given in the
manner provided in Section 3.02 except that the notice of redemption shall also
state that the Debt Securities are being redeemed by operation of the sinking
fund. Such notice having been duly given, the redemption of such Debt Securities
shall be made upon the terms and in the manner stated in Section 3.03.
At least one business day before each sinking fund payment date, the Company
shall pay to the Trustee (or, if the Company is acting as its own paying agent,
the Company shall segregate and hold in trust) in cash a sum in the Currency in
which the Debt Securities of such series are denominated (except as provided
pursuant to Section 2.03) equal to any interest accrued to the date fixed for
redemption of Debt Securities or portions thereof to be redeemed on such sinking
fund payment date pursuant to this Section 3.05. The Trustee shall not redeem
any Debt Securities of a series with sinking fund moneys or mail any notice of
redemption of such Debt Securities by operation of the sinking fund for such
series during the continuance of a Default in payment of interest on such Debt
Securities or of any Event of Default (other than an Event of Default occurring
as a consequence of this paragraph) with respect to such Debt Securities, except
that if the notice of redemption of any such Debt Securities shall theretofore
have been mailed in accordance with the provisions hereof, the Trustee shall
redeem such Debt Securities if cash sufficient for that purpose shall be
deposited with the Trustee for that purpose in accordance with the terms of this
Article III. Except as aforesaid, any moneys in the sinking fund for such series
at the time when any such Default or Event of Default
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shall occur and any moneys thereafter paid into such sinking fund shall,
during the continuance of such Default or Event of Default, be held as
security for the payment of such Debt Securities; provided, however, that in
case such Event of Default or Default shall have been cured or waived as
provided herein, such moneys shall thereafter be applied on the next sinking
fund payment date for such Debt Securities on which such moneys may be applied
pursuant to the provisions of this Section 3.05.
ARTICLE IV
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01. PAYMENT OF PRINCIPAL OF, AND PREMIUM, IF ANY, AND INTEREST ON,
DEBT SECURITIES. The Company, for the benefit of each series of Debt Securities,
will duly and punctually pay or cause to be paid the principal of, and premium,
if any, and interest on, each of the Debt Securities at the place, at the
respective times and in the manner provided herein and in the Debt Securities.
Each installment of interest on the Debt Securities may be paid by mailing
checks for such interest payable to the Person entitled thereto pursuant to
Section 2.07(a) to the address of such Person as it appears on the Debt Security
Register or by a wire transfer as provided in Section 2.12.
Principal, premium and interest of Debt Securities of any series shall be
considered paid on the date due if on such date the Trustee or any paying agent
holds in accordance with this Indenture money sufficient to pay in the Currency
in which the Debt Securities of such series are denominated (except as provided
pursuant to Section 2.03) all principal, premium and interest then due and, in
the case of Debt Securities subordinated pursuant to the terms of Article XII,
the Trustee or such paying agent, as the case may be, is not prohibited from
paying such money to the Holders on that date pursuant to the terms of this
Indenture.
The Company shall pay interest on overdue principal at the rate specified
therefor in the Debt Securities and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
Section 4.02. MAINTENANCE OF OFFICES OR AGENCIES FOR REGISTRATION OF TRANSFER,
EXCHANGE AND PAYMENT OF DEBT SECURITIES. The Company will maintain in each Place
of Payment for any series of Debt Securities an office or agency where Debt
Securities may be presented or surrendered for payment and where Debt Securities
of such series may be surrendered for transfer or exchange.
The Company may also from time to time designate different or additional offices
or agencies to be maintained for such purposes (in or outside of such Place of
Payment), and may from time to time rescind any such designation; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligations described in the preceding paragraph. The Company
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will give prompt written notice to the Trustee of any such additional
designation or rescission of designation and any change in the location of any
such different or additional office or agency.
Section 4.03. APPOINTMENT TO FILL A VACANCY IN THE OFFICE OF TRUSTEE. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 7.10, a Trustee, so that there
shall at all times be a Trustee hereunder with respect to each series of Debt
Securities.
Section 4.04. DUTIES OF PAYING AGENTS, ETC.
(a) The Company shall cause each paying agent, if any, other than the
Trustee, to execute and deliver to the Trustee an instrument in which
such agent shall agree with the Trustee, subject to the provisions of
this Section 4.04,
(i) that it will hold all sums held by it as such agent for
the payment of the principal of, and premium, if any, or
interest on, the Debt Securities of any series (whether such
sums have been paid to it by the Company or by any other
obligor on the Debt Securities of such series) in trust for
the benefit of the Holders of the Debt Securities;
(ii) that it will give the Trustee notice of any failure by
the Company (or by any other obligor on the Debt Securities
of such series) to make any payment of the principal of, and
premium, if any, or interest on, the Debt Securities of such
series when the same shall be due and payable; and
(iii) that it will at any time during the continuance of an
Event of Default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held by it as such
agent.
(b) If the Company shall act as its own paying agent, it will, on or
before each due date of the principal of, and premium, if any, or
interest on, the Debt Securities of any series, set aside, segregate
and hold in trust for the benefit of the Holders of the Debt
Securities a sum sufficient to pay such principal, premium, if any, or
interest so becoming due. The Company will promptly notify the Trustee
of any failure by the Company to take such action or the failure by
any other obligor on such Debt Securities to make any payment of the
principal of, and premium, if any, or interest on, such Debt
Securities when the same shall be due and payable.
(c) Anything in this Section 4.04 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction
and discharge of this Indenture, or for any other reason, pay or cause
to be paid to the Trustee all sums held in trust by it or any paying
agent, as required by this Section 4.04, such sums to
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be held by the Trustee upon the same trusts as those upon which such
sums were held by the Company or such paying agent.
(d) Whenever the Company shall have one or more paying agents with
respect to any series of Debt Securities, it will, prior to each due
date of the principal of, and premium, if any, or interest on, any
Debt Securities of such series, deposit with any such paying agent a
sum sufficient to pay the principal, premium or interest so becoming
due, such sum to be held in trust for the benefit of the Persons
entitled thereto, and (unless any such paying agent is the Trustee)
the Company will promptly notify the Trustee of its action or failure
so to act.
(e) Anything in this Section 4.04 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 4.04 is
subject to the provisions of Section 11.05.
Section 4.05. STATEMENT BY OFFICERS AS TO DEFAULT. The Company will deliver to
the Trustee, on or before a date not more than four months after the end of each
fiscal year of the Company (currently on a calendar year basis) ending after the
date hereof, an Officers' Certificate stating, as to each officer signing such
certificate, that (a) in the course of his performance of his duties as an
officer of the Company he would normally have knowledge of any Default, (b)
whether or not to the best of his knowledge any Default occurred during such
year and (c) if to the best of his knowledge the Company is in Default,
specifying all such Defaults, their status and what action the Company is taking
or proposes to take with respect thereto. The Company also shall comply with
Section 314(a)(4) of the Trust Indenture Act.
Section 4.06. FURTHER INSTRUMENTS AND ACTS. The Company will, upon request of
the Trustee, execute and deliver such further instruments and do such further
acts as may reasonably be necessary or proper to carry out more effectually the
purposes of this Indenture.
Section 4.07. EXISTENCE. Subject to Article X, the Company will do or cause to
be done all things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
Section 4.08. LIMITATION ON LIENS. The Company will not and will not permit any
Restricted Subsidiary to, directly or indirectly, create or permit to exist any
Liens except for Permitted Liens and Government Contract Liens. Notwithstanding
the foregoing, the Company and any one or more Restricted Subsidiaries may incur
Indebtedness which would otherwise be subject to the foregoing restrictions in
an aggregate amount which, together with all other outstanding Indebtedness of
the Company and its Restricted Subsidiaries which (if originally issued, assumed
or guaranteed at such
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time) would otherwise be subject to the foregoing restrictions does not at the
time exceed $50,000,000.
Section 4.09. LIMITATION ON SALE/LEASEBACK TRANSACTIONS. The Company will not,
and will not permit any Restricted Subsidiary to, directly or indirectly, enter
into, Guarantee or otherwise become liable with respect to any Sale/Leaseback
Transaction with respect to any property or assets unless (i) the Company or
such Restricted Subsidiary, as the case may be, would be entitled, pursuant to
this Indenture, to incur indebtedness secured by a Permitted Lien on such
property or assets in an amount equal to the Attributable Indebtedness with
respect to such Sale/Leaseback Transaction and (ii) the net cash proceeds from
such Sale/Leaseback Transaction are at least equal to the fair market value of
the property or assets subject to such Sale/Leaseback Transaction (such fair
market value determined, in the event such property or assets have a fair market
value in excess of $1.0 million, no more than 30 days prior to the effective
date of such Sale/Leaseback Transaction, by the Board of Directors of the
Company as evidenced by a resolution of such Board).
Section 4.10. PURCHASE OF DEBT SECURITIES AT OPTION OF THE HOLDER UPON CHANGE
IN CONTROL. (a) If there shall have occurred a Change in Control, Debt
Securities shall be purchased by the Company, at the option of the holder
thereof, at a purchase price (the "Change in Control Purchase Price") equal to
(i) unless otherwise specified in the terms of such Debt Securities, one hundred
percent (100%) of the principal amount thereof, together with accrued interest
to the Change in Control Purchase Date referred to below (except that interest
installments due prior to the Change in Control Purchase Date will be payable to
the holders of such Debt Securities of record at the close of business on the
relevant record dates according to their terms and the provisions of Section
2.12), or (ii) such other price or prices as may be specified in the terms of
such Debt Securities; in each case as of the date that is thirty-five (35)
Business Days after the occurrence of the Change in Control (the "Change in
Control Purchase Date"), subject to satisfaction by or on behalf of the holder
of the requirements set forth in Section 4.10(c).
A "Change in Control" shall be deemed to have occurred if any Person, together
with all Affiliates of such Person, shall have acquired "beneficial ownership"
(within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of
1934, as amended, and the applicable rules and regulations thereunder) of shares
of Voting Stock representing at least twenty percent (20%) of the outstanding
Voting Power of the Company.
Notwithstanding the foregoing provisions of this Section 4.10, a Change in
Control shall not be deemed to have occurred when:
(i) the Change in Control occurs by virtue of the Company, any
Subsidiary of the Company, any employee stock ownership plan or any
other employee benefit plan of the Company or any such Subsidiary, or
any person holding Voting Stock for or pursuant to the terms of any
such employee benefit plan, acquiring beneficial
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ownership of shares of Voting Stock, whether representing twenty
percent (20%) or more of the outstanding Voting Power of the Company
or otherwise; or
(ii) a Person, including the Affiliates of such Person, has become the
beneficial owner of twenty percent (20%) or more of the Voting Power
of the Company solely as a result of a reduction in the number of
shares of Voting Stock outstanding, unless and until such time as:
------ --- -----
(A) such Person, together with the Affiliates of such
Person, thereafter obtains beneficial ownership of
additional Voting Stock of the Company representing one
percent (1%) or more of the then-outstanding Voting Stock of
the Company, other than as a result of a stock split, stock
dividend or similar transaction effected by the Company in
which all holders of such Voting Stock are treated equally,
or
(B) any other Person who holds beneficial ownership of one
percent (1%) or more of the Voting Stock of the Company
becomes an Affiliate of such Person; or
(iii) the Board of Directors of the Company determines in good faith
that a Person who would otherwise be considered to have caused a
Change in Control pursuant to this Section 4.10 has done such
inadvertently, and such Person divests as promptly as practicable a
sufficient number of Voting Stock of the Company so that such Person
no longer beneficially owns twenty percent (20%) or more of the Voting
Power of the Company; or
(iv) a Person, including the Affiliates of such Person, has become the
beneficial owner of twenty percent (20%) or more of the Voting Power
of the Company with the approval of the Board of Directors of the
Company in connection with its approval of a merger, combination or
similar transaction involving the Company.
In addition, the shares held by Chase Manhattan Trust Company, N.A., trustee
under note indenture for USX Corporation's 6 3/4% Exchangable Notes due February
1, 2000, shall be deemed held by the beneficial owners of the notes for which
the shares were exchanged.
(b) Within fifteen (15) Business Days after the occurrence of a Change in
Control, the Company shall mail a written notice of Change in Control by first-
class mail to the Trustee and to each holder (and to beneficial owners as
required by applicable law) of Debt Securities of any Series and shall cause a
copy of such notice to be published in a daily newspaper of national
circulation. The notice shall state:
(1) the events causing a Change in Control (specifying such events)
and the date of such Change in Control;
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(2) the date by which the Change in Control Purchase Notice pursuant
to this Section 4.10 must be given;
(3) the Change in Control Purchase Date;
(4) the Change in Control Purchase Price;
(5) the name and address of the Paying Agent for such Series;
(6) that on the Change in Control Purchase Date each Debt Security of
such Series surrendered in accordance with this Section 4.10 and the
terms of such Debt Security for payment at the Change in Control
Purchase Price will be purchased by the Company at such price and, if
applicable, that interest thereon will cease to accrue on and after
such date;
(7) the procedures the holder must follow to exercise rights under
this Section 4.10, including procedures to be following by a holder
acting as a holder of record on behalf of more than one beneficial
owner in exercising rights specified in this Section 4.10 with respect
to less than all such beneficial owners; and
(8) the procedures for withdrawing a Change in Control Purchase
Notice.
(c) A holder of Debt Securities of any Series may exercise its rights
specified in Section 4.10 (a) by delivering a written notice of purchase (a
"Change in Control Purchase Notice") to the Paying Agent for such Series at its
address set forth on the notice sent pursuant to Section 4.10 (b) (5) at any
time prior to the close of business on the Change in Control Purchase Date with
respect to such Change of Control, stating:
(1) the certificate number or numbers of the Debt Security or
Securities which the holder will deliver to be purchased; and
(2) that such Debt Security or Securities shall be purchased pursuant
to the terms and conditions specified herein and in the Company's
notice pursuant to Section 4.10(b).
The delivery of such Debt Security or Securities to such Paying Agent prior to,
on or after the Change in Control Purchase Date (together with all necessary
endorsements) at the offices of such Paying Agent shall be a condition to the
receipt by the holder of the Change in Control Purchase Price therefor,
provided, however, that such Change in Control Purchase Price shall be so paid
pursuant to this Section 4.10 only if the Debt Security or Securities so
delivered to the Paying Agent shall conform in all respects to the description
thereof set forth in the related Change in Control Purchase Notice.
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The Company shall establish procedures to permit a holder of a Debt Security or
Securities acting as a holder of record on behalf of more than one beneficial
owner to exercise the rights specified in this Section 4.10 with respect to less
than all such beneficial owners.
Any purchase by the Company contemplated pursuant to the provisions of this
Section 4.10 shall be consummated by the delivery of the consideration to be
received by the holder promptly following the later of the Change in Control
Purchase Date and the time of delivery of the Debt Security.
Notwithstanding anything herein to the contrary, any holder of Debt Securities
of a Series delivering to the Paying Agent for such Series the Change in Control
Purchase Notice contemplated by this Section 4.10(c) shall have the right to
withdraw such Change in Control Purchase Notice at any time prior to the close
of business on the Change in Control Purchase Date by delivery of a written
notice of withdrawal to such Paying Agent in accordance with Section 4.11.
Section 4.11. EFFECT OF CHANGE IN CONTROL PURCHASE NOTICE. Upon receipt by the
Company of the Change in Control Purchase Notice specified in Section 4.10(c),
the holder of the Debt Security in respect of which such notice was given shall
(unless such notice is withdrawn as specified in the following two paragraphs)
thereafter be entitled to receive solely the Change in Control Purchase Price
with respect to such Debt Security. Such price shall be paid to such holder
promptly following the later of (x) the Change in Control Purchase Date with
respect to such Debt Security (provided the conditions in Section 4.10(c) have
been satisfied) and (y) the time of delivery of such Debt Security to the Paying
Agent therefor by the holder thereof in the manner required by Section 4.10(c).
A Change in Control Purchase Notice may be withdrawn by means of a written
notice of withdrawal signed by the holder delivered to the office of such Paying
Agent at its address set forth on the notice sent pursuant to Section 4.10(b)(5)
at any time prior to the close of business on the Change in Control Purchase
Date specifying the certificate number or numbers of the Debt Security or
Securities in respect of which such notice of withdrawal is being submitted.
Section 4.12. DEPOSIT OF CHANGE IN CONTROL PURCHASE PRICE. On or before the
Business Day following the Change in Control Purchase Date, the Company shall
deposit with the Trustee or with the Paying Agent (or, if the Company or a
Subsidiary or an Affiliate of either of them is acting as the Paying Agent,
shall segregate and hold in trust as provided in Section 4.04) an amount of
money sufficient to pay the aggregate Change in Control Purchase Price of all
the Debt Securities which are to be purchased as of the Change in Control
Purchase Date.
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ARTICLE V
HOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
Section 5.01. COMPANY TO FURNISH TRUSTEE INFORMATION AS TO NAMES AND ADDRESSES
OF HOLDERS; PRESERVATION OF INFORMATION. The Company covenants and agrees that
it will furnish or cause to be furnished to the Trustee with respect to the
Registered Securities of each series:
(a) not more than 15 days after each record date with respect to the
payment of interest, if any, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Registered
Holders as of such record date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list
of similar form and contents 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 shall be the Registrar, such lists shall not be required
to be furnished.
The Trustee shall preserve, in as current a form as is reasonably practicable,
all information as to the names and addresses of the Holders (i) contained in
the most recent list furnished to it as provided in this Section 5.01 or (ii)
received by it in the capacity of paying agent or Registrar (if so acting)
hereunder.
The Trustee may destroy any list furnished to it as provided in this Section
5.01 upon receipt of a new list so furnished.
Section 5.02. COMMUNICATIONS TO HOLDERS. Holders may communicate pursuant to
Section 312(b) of the Trust Indenture Act with other Holders with respect to
their rights under this Indenture or the Debt Securities. The Company, the
Trustee, the Registrar and anyone else shall have the protection of Section
312(c) of the Trust Indenture Act.
Section 5.03. REPORTS BY COMPANY.
(a) The Company covenants and agrees, and any obligor hereunder shall
covenant and agree, to file with the Trustee and the Holders (in the
manner and to the extent provided in Section 5.04), within 15 days
after the Company or such obligor, as the case may be, is required to
file the same with the Securities and Exchange 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 said Commission
may from time to time by rules and regulations prescribe) which the
Company or such obligor, as the case may be, may be required to file
with said Commission
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pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if
the Company or such obligor, as the case may be, is not required to
file information, documents or reports pursuant to either of such
Sections, then to file with the Trustee, the Holders (in the manner
and to the extent provided in Section 5.04) and said Commission, in
accordance with rules and regulations prescribed from time to time
by said Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Exchange Act in respect of a security listed and
registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations.
(b) The Company covenants and agrees, and any obligor hereunder shall
covenant and agree, to file with the Trustee, the Holders (in the
manner and to the extent provided in Section 5.04) and the Securities
and Exchange Commission, in accordance with the rules and regulations
prescribed from time to time by said Commission, such additional
information, documents, and reports with respect to compliance by the
Company or such obligor, as the case may be, with the conditions and
covenants provided for in this Indenture as may be required from time
to time by such rules and regulations.
Section 5.04. REPORTS BY TRUSTEE. Within 60 days after each May 15 beginning
with the May 15 following the date of this Indenture, the Trustee shall mail to
each Holder a brief report dated as of May 15 that complies with Section 313(a)
of the Trust Indenture Act. The Trustee also shall comply with Section 313(b) of
the Trust Indenture Act.
Reports pursuant to this Section 5.04 shall be transmitted by mail:
(a) to all Registered Holders, as the names and addresses of such
Holders appear in the Debt Security Register;
(b) except in the cases of reports under Section 313(b)(2) of the
Trust Indenture Act, to each Holder of a Debt Security of any series
whose name and address appear in the information preserved at the time
by the Trustee in accordance with Section 5.02.
A copy of each report at the time of its mailing to Holders shall be filed with
the Securities and Exchange Commission and each stock exchange (if any) on which
the Debt Securities of any series are listed. The Company agrees to notify
promptly the Trustee whenever the Debt Securities of any series become listed on
any stock exchange and of any delisting thereof.
Section 5.05. RECORD DATES FOR ACTION BY HOLDERS. If the Company shall solicit
from the holders of Debt Securities of any series any action (including the
making of any demand or request, the giving of any direction, notice, consent or
waiver or the taking of any other action), the Company may, at its option, by
resolution of the Board of Directors, fix in advance a record date for the
determination of Holders of Debt Securities entitled to take such action, but
the Company shall
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have no obligation to do so. Any such record date shall be fixed at the
Company's discretion. If such a record date is fixed, such action may be
sought or given before or after the record date, but only the Holders of Debt
Securities of record at the close of business on such record date shall be
deemed to be Holders of Debt Securities for the purpose of determining whether
Holders of the requisite proportion of Debt Securities of such series
Outstanding have authorized or agreed or consented to such action, and for
that purpose the Debt Securities of such series Outstanding shall be computed
as of such record date.
ARTICLE VI
REMEDIES OF THE TRUSTEE AND HOLDERS IN EVENT OF DEFAULT
Section 6.01. EVENTS OF DEFAULT. If any one or more of the following shall have
occurred and be continuing with respect to Debt Securities of any series (each
of the following, an "Event of Default"):
(a) default in the payment of any installment of interest upon any
Debt Securities of that series as and when the same shall become due
and payable, whether or not such payment shall be prohibited by
Article XII, if applicable, and continuance of such default for a
period of 30 days; or
(b) default in the payment of the principal of or premium, if any, on
any Debt Securities of that series as and when the same shall become
due and payable, whether at maturity, upon redemption, by declaration,
upon required repurchase or otherwise, whether or not such payment
shall be prohibited by Article XII, if applicable; or
(c) default in the payment of the Change in Control Purchase Price on
any Debt Securities of that series as and when the same shall become
due and payable pursuant to Section 4.11; or
(d) default in the payment of any sinking fund payment with respect
to any Debt Securities of that series as and when the same shall
become due and payable; or
(e) failure on the part of the Company to comply with Article X; or
(f) failure on the part of the Company duly to observe or perform any
other of the covenants or agreements on the part of the Company in the
Debt Securities of that series, in any resolution of the Board of
Directors authorizing the issuance of that series of Debt Securities,
in this Indenture with respect to such series or in any supplemental
Indenture with respect to such series (other than a covenant a default
in the performance of which is elsewhere in this Section specifically
dealt with), continuing for a period of 90 days after the date on
which written notice specifying
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such failure and requiring the Company to remedy the same shall have
been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least
25% in aggregate principal amount of the Debt Securities of that
series at the time Outstanding; or
(g) the Company or any of its Significant Subsidiaries that Guarantees
the payment of a series of Debt Securities shall (i) voluntarily
commence any proceeding or file any petition seeking relief under
Title 11 of the United States Code or any other Federal or State
bankruptcy, insolvency or similar law, (ii) consent to the institution
of, or fail to controvert within the time and in the manner prescribed
by law, any such proceeding or the filing of any such petition, (iii)
apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator or similar official for the Company or any
such Significant Subsidiary or for a substantial part of its property,
(iv) file an answer admitting the material allegations of a petition
filed against it in any such proceeding, (v) make a general assignment
for the benefit of creditors, (vi) admit in writing its inability to
pay its debts as they become due, (vii) take corporate action for the
purpose of effecting any of the foregoing, or (viii) take any
comparable action under any foreign laws relating to insolvency; or
(h) the entry of an order or decree by a court having competent
jurisdiction for (i) relief in respect of the Company or any of its
Significant Subsidiaries that guarantees the payment of a series of
Debt Securities or a substantial part of any of their property under
Title 11 of the United States Code or any other Federal or State
bankruptcy, insolvency or similar law, (ii) the appointment of a
receiver, trustee, custodian, sequestrator or similar official for the
Company or any such Significant Subsidiary or for a substantial part
of any of their property (except any decree or order appointing such
official of any Significant Subsidiary pursuant to a plan under which
the assets and operations of such Significant Subsidiary are
transferred to or combined with another Subsidiary or Subsidiaries of
the Company or to the Company) or (iii) the winding-up or liquidation
of the Company or any such Significant Subsidiary (except any decree
or order approving or ordering the winding up or liquidation of the
affairs of a Significant Subsidiary pursuant to a plan under which the
assets and operations of such Significant Subsidiary are transferred
to or combined with another Subsidiary or Subsidiaries of the Company
or to the Company); and such order or decree shall continue unstayed
and in effect for 60 consecutive days; or any similar relief is
granted under any foreign laws and the order or decree stays in effect
for 60 consecutive days; or
(i) any judgment or decree for the payment of money in excess of
$20,000,000 or its Dollar Equivalent at the time is entered against
the Company or any Significant Subsidiary of the Company that
guarantees the payment of a series of Debt Securities by a court or
courts of competent jurisdiction, which judgment is not covered by
insurance, and is not discharged and either (i) an enforcement
proceeding has been
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commenced by any creditor upon such judgment or decree or (ii) there
is a period of 90 days following the entry of such judgment or
decree during which such judgment or decree is not discharged,
waived or the execution thereof stayed and, in the case of (i) or
(ii), such default continues for 10 days after the date on which
written notice specifying such failure and requiring the Company to
remedy the same shall have been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount
of the Debt Securities of that series at the time Outstanding; or
(j) any other Event of Default provided with respect to Debt
Securities of that series; then and in each and every case that an
Event of Default described in clause (a), (b), (c), (d), (e), (f), (i)
or (j) with respect to Debt Securities of that series at the time
Outstanding occurs and is continuing, unless the principal of and
interest on all the Debt Securities of that series shall have already
become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Debt Securities of that
series then Outstanding hereunder, by notice in writing to the Company
(and to the Trustee if given by Holders), may declare the principal of
(or, if the Debt Securities of that series are Original Issue Discount
Debt Securities, such portion of the principal amount as may be
specified in the terms of that series) and interest on all the Debt
Securities of that series to be due and payable immediately, and upon
any such declaration the same shall become and shall be immediately
due and payable, anything in this Indenture or in the Debt Securities
of that series contained to the contrary notwithstanding. If an Event
of Default described in clause (g) or (h) occurs, then and in each and
every such case, unless the principal of and interest on all the Debt
Securities shall have become due and payable, the principal of (or, if
any Debt Securities are Original Issue Discount Debt Securities, such
portion of the principal amount as may be specified in the terms
thereto) and interest on all the Debt Securities then Outstanding
hereunder shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any
Holders, anything in this Indenture or in the Debt Securities
contained to the contrary notwithstanding.
The Holders of a majority in aggregate principal amount of the Debt Securities
of a particular series by notice to the Trustee may rescind an acceleration and
its consequences if the rescission would not conflict with any judgment or
decree already rendered and if all existing Events of Default have been cured or
waived except nonpayment of principal or interest that has become due solely
because of acceleration. Upon any such rescission, the parties hereto shall be
restored respectively to their several positions and rights hereunder, and all
rights, remedies and powers of the parties hereto shall continue as though no
such proceeding had been taken.
In case the Trustee or any Holder shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee or such
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Holder, then and in every such case the parties hereto shall be restored
respectively to their several positions and rights hereunder, and all rights,
remedies and powers of the parties hereto shall continue as though no such
proceeding had been taken.
The foregoing Events of Default shall constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is 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.
Section 6.02. COLLECTION OF INDEBTEDNESS BY TRUSTEE, ETC. If an Event of Default
occurs and is continuing, the Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and unpaid
or enforce the performance of any provision of the Debt Securities of the
affected series or this Indenture, and may prosecute any such action or
proceedings to judgment or final decree, and may enforce any such judgment or
final decree against the Company or any other obligor upon the Debt Securities
of such series (and collect in the manner provided by law out of the property of
the Company or any other obligor upon the Debt Securities wherever situated the
moneys adjudged or decreed to be payable).
In case there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor upon the Debt Securities of
any series under Title 11 of the United States Code or any other Federal or
State bankruptcy, insolvency or similar law, or in case a receiver, trustee or
other similar official shall have been appointed for its property, or in case of
any other similar judicial proceedings relative to the Company or any other
obligor upon the Debt Securities of any series, its creditors or its property,
the Trustee, irrespective of whether the principal of Debt 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
pursuant to the provisions of this Section 6.02, shall be entitled and
empowered, by intervention in such proceedings or otherwise, to file and prove a
claim or claims for the whole amount of principal, premium, if any, and interest
(or, if the Debt Securities of such series are Original Issue Discount Debt
Securities, such portion of the principal amount as may be specified in the
terms of such series) owing and unpaid in respect of the Debt Securities of such
series, and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
for reimbursement of all expenses and liabilities Incurred, and all advances
made, by the Trustee except as a result of its negligence or bad faith) and of
the Holders thereof allowed in any such judicial proceedings relative to the
Company, or any other obligor upon the Debt Securities of such series, its
creditors or its property, and to collect and receive any moneys or other
property payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of such Holders and of the Trustee
on their behalf, and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of such Holders to make payments to
the Trustee, and, in the event that the Trustee shall consent to the making of
payments directly to such Holders, to pay to the Trustee such amount as shall be
sufficient to cover reasonable compensation to the Trustee,
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its agents, attorneys and counsel, and all other reasonable expenses and
liabilities Incurred, and all advances made, by the Trustee except as a result
of its negligence or bad faith.
All rights of action and of asserting claims under this Indenture, or under any
of the Debt Securities of any series, may be enforced by the Trustee without the
possession of any such Debt Securities or the production thereof in any trial or
other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment (except for any amounts payable to
the Trustee pursuant to Section 7.06) shall be for the ratable benefit of the
Holders of all the Debt Securities in respect of which such action was taken.
In case of an Event of Default hereunder the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
Section 6.03. APPLICATION OF MONEYS COLLECTED BY TRUSTEE. Any moneys or other
property collected by the Trustee pursuant to Section 6.02 with respect to Debt
Securities of any series shall be applied, after giving effect to the provisions
of Article XII, if applicable, in the order following, at the date or dates
fixed by the Trustee for the distribution of such moneys or other property, upon
presentation of the several Debt Securities in respect of which moneys or other
property have been collected, and the notation thereon of the payment, if only
partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of all money due the Trustee pursuant to Section 7.06;
SECOND: In case the principal of the Outstanding Debt Securities in respect of
which such moneys have been collected shall not have become due, to the payment
of interest on the Debt Securities of such series in the order of the maturity
of the installments of such interest, with interest (to the extent that such
interest has been collected by the Trustee) upon the overdue installments of
interest at the rate or Yield to Maturity (in the case of Original Issue
Discount Debt Securities) borne by the Debt Securities such payments to be made
ratably to the Persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Outstanding Debt Securities in respect of
which such moneys have been collected shall have become due, by declaration or
otherwise, to the payment of the whole amount then owing and unpaid upon the
Debt Securities of such series for principal and premium, if any, and interest,
with interest on the overdue principal and premium, if any, and (to the extent
that such interest has been collected by the Trustee) upon overdue installments
of interest at the rate or Yield to Maturity (in the case of Original Issue
Discount Debt Securities) borne by the Debt Securities; and, in case such moneys
shall be insufficient to pay in full the whole amount so due and
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unpaid upon the Debt Securities, then to the payment of such principal and
premium, if any, and interest, without preference or priority of principal and
premium, if any, over interest, or of interest over principal and premium, if
any, or of any installment of interest over any other installment of interest,
or of any Debt Security over any Debt Security ratably to the aggregate of
such principal and premium, if any, and interest; and
FOURTH: The remainder, if any, shall be paid to the Company, its successors or
assigns, or to whomsoever may be lawfully entitled to receive the same, or as a
court of competent jurisdiction may direct.
The Trustee may fix a record date and payment date for any payment to Holders
pursuant to this Section 6.03. At least 15 days before such record date, the
Company shall mail to each Holder and the Trustee a notice that states the
record date, the payment date and amount to be paid.
Section 6.04. LIMITATION ON SUITS BY HOLDERS. No Holder of any Debt Security of
any series shall have any right by virtue or by availing of any provision of
this Indenture to institute any action or proceeding at law or in equity or in
bankruptcy or otherwise, upon or under or with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless such Holder previously shall have given to the Trustee written notice of
an Event of Default with respect to Debt Securities of that same series and of
the continuance thereof and unless the Holders of not less than 25% in aggregate
principal amount of the Outstanding Debt Securities of that series shall have
made written request upon the Trustee to institute such action or proceedings in
respect of such Event of Default in its own name as Trustee hereunder and shall
have offered to the Trustee such reasonable indemnity as it may require against
the costs, expenses and liabilities to be Incurred therein or thereby, and the
Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action or proceedings and no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 6.06; it being understood and intended, and being
expressly covenanted by the Holder of every Debt Security with every other
Holder and the Trustee, that no one or more Holders shall have any right in any
manner whatever by virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of any Holders, or to obtain or seek to
obtain priority over or preference to any other such Holder, or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all such Holders. For the protection and
enforcement of the provisions of this Section 6.04, each and every Holder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
Notwithstanding any other provision in this Indenture, however, the right of any
Holder of any Debt Security to receive payment of the principal of, and premium,
if any, and (subject to Section 2.12) interest on, such Debt Security, on or
after the respective due dates expressed in such Debt Security, or, subject to
compliance with Sections 4.10 and 4.11, receive the Change in Control Purchase
Price on the date as and when the same shall become due and payable pursuant to
Section 4.10, and to institute suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or affected without the
consent of such Holder.
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Section 6.05. REMEDIES CUMULATIVE; DELAY OR OMISSION IN EXERCISE OF RIGHTS NOT A
WAIVER OF DEFAULT. All powers and remedies given by this Article VI to the
Trustee or to the Holders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any thereof or of any other powers and remedies
available to the Trustee or the Holders, by judicial proceedings or otherwise,
to enforce the performance or observance of the covenants and agreements
contained in this Indenture, and no delay or omission of the Trustee or of any
Holder to exercise any right or power accruing upon any Default occurring and
continuing as aforesaid, shall impair any such right or power, or shall be
construed to be a waiver of any such Default or an acquiescence therein; and,
subject to the provisions of Section 6.04, every power and remedy given by this
Article VI or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as shall be deemed expedient, by the Trustee or by the
Holders.
Section 6.06. RIGHTS OF HOLDERS OF MAJORITY IN PRINCIPAL AMOUNT OF DEBT
SECURITIES TO DIRECT TRUSTEE AND TO WAIVE DEFAULT. The Holders of a majority in
aggregate 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 the Debt Securities
of such series; provided, however, that such direction shall not be otherwise
than in accordance with law and the provisions of this Indenture, and that
subject to the provisions of Section 7.01, the Trustee shall have the right to
decline to follow any such direction if the Trustee being advised by counsel
shall determine that the action so directed may not lawfully be taken, or if the
Trustee shall by a responsible officer or officers determine that the action so
directed would involve it in personal liability or would be unjustly prejudicial
to Holders of Debt Securities of such series not taking part in such direction;
and provided, further, however, that nothing in this Indenture contained shall
impair the right of the Trustee to take any action deemed proper by the Trustee
and which is not inconsistent with such direction by such Holders. Prior to the
acceleration of the maturity of the Debt Securities of any series, as provided
in Section 6.01, the Holders of a majority in aggregate principal amount of the
Debt Securities of that series at the time Outstanding may on behalf of the
Holders of all the Debt Securities waive any past Default or Event of Default
and its consequences for that series specified in the terms thereof as
contemplated by Section 2.03, except (a) a Default in the payment of the
principal of, and premium, if any, or interest on, any of the Debt Securities
and (b) a Default in respect of a provision that under Section 9.02 cannot be
amended without the consent of each Holder affected thereby. In case of any such
waiver, such Default shall cease to exist, any Event of Default arising
therefrom shall be deemed to have been cured for every purpose of this
Indenture, and the Company, the Trustee and the Holders of the Debt Securities
of that series shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereon.
Section 6.07. TRUSTEE TO GIVE NOTICE OF DEFAULTS KNOWN TO IT, BUT MAY WITHHOLD
SUCH NOTICE IN CERTAIN CIRCUMSTANCES. The Trustee shall, within 90 days after
the occurrence of a Default known to it with respect to a series of Debt
Securities, give to the Holders thereof, in the manner provided in Section
13.03, notice of all Defaults with respect to such series known to the Trustee,
unless such Defaults shall have been cured or waived before the
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giving of such notice; provided, that, except in the case of Default in the
payment of the principal of, or premium, if any, or interest on, any of the
Debt Securities or in the making of any sinking fund payment with respect to
the Debt Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the
executive committee or a committee of directors or responsible officers of the
Trustee in good faith determine that the withholding of such notice is in the
interests of the Holders thereof.
Section 6.08. REQUIREMENT OF AN UNDERTAKING TO PAY COSTS IN CERTAIN SUITS UNDER
THE INDENTURE OR AGAINST THE TRUSTEE. All parties to this Indenture agree, and
each Holder of any Debt Security by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken 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 in
the manner and to the extent provided in the Trust Indenture Act, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees and expenses, 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 6.08 shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than ten percent in principal amount
of the Outstanding Debt Securities of that series or to any suit instituted by
any Holder for the enforcement of the payment of the principal of, or premium,
if any, or interest on, any Debt Security on or after the due date for such
payment expressed in such Debt Security.
ARTICLE VII
CONCERNING THE TRUSTEE
Section 7.01. CERTAIN DUTIES AND RESPONSIBILITIES. The Trustee, prior to the
occurrence of an Event of Default and after the curing or waiving of all Events
of Default which may have occurred, undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture. In case an Event of
Default has occurred (which has not been cured or waived), the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act, or its
own wilful misconduct, except that:
(a) this subsection shall not be construed to limit the effect of the
first paragraph of this Section 7.01;
(b) prior to the occurrence of an Event of Default with respect to the
Debt Securities of a series and after the curing or waiving of all
Events of Default with respect to such series which may have occurred:
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(i) the duties and obligations of the Trustee with respect
to Debt Securities of any series shall be determined solely
by the express provisions of this Indenture, and the Trustee
shall not be liable except for the performance of such
duties and obligations with respect to such series as are
specifically set forth in this Indenture, and no implied
covenants or obligations with respect to such series shall
be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon any 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; but
the Trustee shall examine the evidence furnished to it
pursuant to Section 5.03 to determine whether or not such
evidence conforms to the requirement of this Indenture;
(iii) the Trustee shall not be liable for an 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
(iv) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it with respect to
Debt Securities of any series in good faith in accordance
with the direction of the Holders of not less than a
majority in aggregate principal amount of the Outstanding
Debt Securities of that 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 Debt Securities of such series.
None of the provisions of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur
any personal 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.
Whether or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection to
the Trustee shall be subject to the provisions of this Section.
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Section 7.02. CERTAIN RIGHTS OF TRUSTEE. Except as otherwise provided in Section
7.01:
(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, note or other paper or document (whether in
its original or facsimile form) believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by a Company Order (unless
other evidence in respect thereof be herein specifically prescribed);
and any resolution of the Board of Directors may be evidenced to the
Trustee by a copy thereof certified by the Secretary or an Assistant
Secretary of the Company;
(c) the Trustee may consult with counsel of its selection, and the
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken
or suffered or omitted by it hereunder in good faith and in accordance
with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order
or direction of any of the Holders of Debt Securities of any series
pursuant to the provisions of this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which may be Incurred
therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by
it in good faith and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture;
(f) prior to the occurrence of an Event of Default and after the
curing of all Events of Default which may have occurred, 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, approval or other
paper or document, unless requested in writing to do so by the Holders
of a majority in aggregate principal amount of the then Outstanding
Debt Securities of a series affected by such matter; provided,
however, that if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be Incurred by it in
the making of such investigation is not, in the opinion of the
Trustee, reasonably assured to the Trustee by the security afforded to
it by the terms of this Indenture, the Trustee may require reasonable
indemnity against such costs, expenses or liabilities as a condition
to so proceeding. The reasonable expense of every such investigation
shall be paid by the Company or, if paid by the Trustee, shall be
repaid by the Company upon demand;
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(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney
appointed by it with due care hereunder; and
(h) if any property other than cash shall at any time be subject to a
Lien in favor of the Holders, the Trustee, if and to the extent
authorized by a receivership or bankruptcy court of competent
jurisdiction or by the supplemental instrument subjecting such
property to such lien, shall be entitled to make advances for the
purpose of preserving such property or of discharging tax Liens or
other prior Liens or encumbrances thereon.
Section 7.03. TRUSTEE NOT LIABLE FOR RECITALS IN INDENTURE OR IN DEBT
SECURITIES. The recitals contained herein, in the Debt Securities (except the
Trustee's certificate of authentication) shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for the correctness of the
same. The Trustee makes no representations as to the validity or sufficiency of
this Indenture or of the Debt Securities of any series. The Trustee shall not be
accountable for the use or application by the Company of any of the Debt
Securities or of the proceeds thereof.
Section 7.04. TRUSTEE, PAYING AGENT OR REGISTRAR MAY OWN DEBT SECURITIES. The
Trustee or any paying agent or Registrar, in its individual or any other
capacity, may become the owner or pledgee of Debt Securities and subject to the
provisions of the Trust Indenture Act relating to conflicts of interest and
preferential claims may otherwise deal with the Company with the same rights it
would have if it were not Trustee, paying agent or Registrar.
Section 7.05. MONEYS RECEIVED BY TRUSTEE TO BE HELD IN TRUST. Subject to the
provisions of Section 11.05, all moneys received by the Trustee shall, until
used or applied as herein provided, be held in trust for the purposes for which
they were received, but need not be segregated from other funds except to the
extent required by law. The Trustee shall be under no liability for interest on
any moneys received by it hereunder. So long as no Event of Default shall have
occurred and be continuing, all interest allowed on any such moneys shall be
paid from time to time to the Company upon a Company Order.
Section 7.06. COMPENSATION AND REIMBURSEMENT. The Company covenants and agrees
to pay in Dollars to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation for all services rendered by it hereunder
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), and, except as otherwise
expressly provided herein, the Company will pay or reimburse in Dollars the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents, attorneys and counsel and of all Persons not
regularly in its employ) except any such expense, disbursement or advances as
may arise from its negligence
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or bad faith. The Company also covenants to indemnify in Dollars the Trustee
and any predecessor Trustee for, and to hold it harmless against, any and all
loss, liability, claim, damage or expense Incurred without negligence, wilful
misconduct or bad faith on the part of the Trustee, arising out of or in
connection with the acceptance or administration of this trust or trusts
hereunder, including the reasonable costs and expenses of defending itself
against any claim of liability in connection with the exercise or performance
of any of its powers or duties hereunder. The obligations of the Company under
this Section 7.06 to compensate and indemnify the Trustee and to pay or
reimburse the Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture and the resignation or removal of
the Trustee. The Company and the Holders agree that such additional
indebtedness shall be secured by a Lien prior to that of the Debt 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 on, particular Debt Securities.
When the Trustee incurs expenses or renders services after an Event of Default
specified in Section 6.01(g) or (h) occurs, the expenses and the compensation
for the services are intended to constitute expenses of administration under any
bankruptcy, insolvency, reorganization or other similar law.
Section 7.07. RIGHT OF TRUSTEE TO RELY ON AN OFFICERS' CERTIFICATE WHERE NO
OTHER EVIDENCE SPECIFICALLY PRESCRIBED. Except as otherwise provided in Section
7.01, whenever in the administration of the provisions of this Indenture the
Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officers'
Certificate delivered to the Trustee and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant to the
Trustee for any action taken, suffered or omitted by it under the provisions of
this Indenture upon the faith thereof.
Section 7.08. SEPARATE TRUSTEE; REPLACEMENT OF TRUSTEE. The Company may, but
need not, appoint a separate Trustee for any one or more series of Debt
Securities. The Trustee may resign with respect to one or more or all series of
Debt Securities at any time by giving notice to the Company. The Holders of a
majority in principal amount of the Debt Securities of a particular series may
remove the Trustee for such series and only such series by so notifying the
Trustee and may appoint a successor Trustee. The Company shall remove the
Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver or other public officer takes charge of the Trustee or
its property; or
(d) the Trustee otherwise becomes incapable of acting.
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If the Trustee resigns, is removed by the Company or by the Holders of a
majority in principal amount of the Debt Securities of a particular series and
such Holders do not reasonably promptly appoint a successor Trustee, or if a
vacancy exists in the office of Trustee for any reason (the Trustee in such
event being referred to herein as the retiring Trustee), the Company shall
promptly appoint a successor Trustee. No resignation or removal of the Trustee
and no appointment of a successor Trustee shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of this Section 7.08.
A successor Trustee shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Company. Thereupon the resignation or removal of the
retiring Trustee shall become effective, and the successor Trustee shall have
all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Holders of Debt
Securities of each applicable series. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, subject to
the Lien provided for in Section 7.06.
If a successor Trustee does not take office within 60 days after the retiring
Trustee gives notice of resignation or is removed, the retiring Trustee or the
Holders of 25% in principal amount of the Debt Securities of any applicable
series may petition any court of competent jurisdiction for the appointment of a
successor Trustee for the Debt Securities of such series.
If the Trustee fails to comply with Section 7.10, any Holder of Debt Securities
of any applicable series may petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee for the
Debt Securities of such series.
Notwithstanding the replacement of the Trustee pursuant to this Section 7.08,
the Company's obligations under Section 7.06 shall continue for the benefit of
the retiring Trustee.
In the case of the appointment hereunder of a separate or successor trustee with
respect to the Debt Securities of one or more series, the Company, any retiring
Trustee and each successor or separate Trustee with respect to the Debt
Securities of any applicable series shall execute and deliver an Indenture
supplemental hereto (i) which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of any retiring Trustee with respect to the Debt Securities of any series as to
which any such retiring Trustee is not retiring shall continue to be vested in
such retiring Trustee and (ii) that shall add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, it being
understood that nothing herein or in such supplemental Indenture shall
constitute such Trustees co-trustees of the same trust and that each such
separate, retiring or successor 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.
Section 7.09. SUCCESSOR TRUSTEE BY MERGER. If the Trustee consolidates with,
merges or converts into, or transfers all or substantially all its corporate
trust business or assets to, another
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corporation or banking association, the resulting, surviving or transferee
corporation or banking association without any further act shall be the
successor Trustee.
In case at the time such successor or successors by merger, conversion or
consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Debt Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Debt Securities so
authenticated; and in case at that time any of the Debt Securities shall not
have been authenticated, any successor to the Trustee may authenticate such Debt
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Debt Securities or in this Indenture
provided that the certificate of the Trustee shall have.
Section 7.10. ELIGIBILITY; DISQUALIFICATION. The Trustee shall at all times
satisfy the requirements of Section 310(a) of the Trust Indenture Act. The
Trustee shall have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition. No obligor upon
the Debt Securities of a particular series or Person directly or indirectly
controlling, controlled by or under common control with such obligor shall serve
as Trustee upon the Debt Securities. The Trustee shall comply with Section
310(b) of the Trust Indenture Act; provided, however, that there shall be
excluded from the operation of Section 310(b)(1) of the Trust Indenture Act this
Indenture or any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Company are
outstanding if the requirements for such exclusion set forth in Section
310(b)(1) of the Trust Indenture Act are met.
Section 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. The Trustee
shall comply with Section 311(a) of the Trust Indenture Act, excluding any
creditor relationship listed in Section 311(b) of the Trust Indenture Act. A
Trustee who has resigned or been removed shall be subject to Section 311(a) of
the Trust Indenture Act to the extent indicated therein.
Section 7.12. COMPLIANCE WITH TAX LAWS. The Trustee hereby agrees to comply with
all U.S. Federal income tax information reporting and withholding requirements
applicable to it with respect to payments of premium (if any) and interest on
the Debt Securities, whether acting as Trustee, Security Registrar, paying agent
or otherwise with respect to the Debt Securities.
ARTICLE VIII
CONCERNING THE HOLDERS
Section 8.01. EVIDENCE OF ACTION BY HOLDERS. Whenever in this Indenture it is
provided that the Holders of a specified percentage in aggregate principal
amount of the Debt Securities of any or all series may take action (including
the making of any demand or request, the giving of any direction, notice,
consent or waiver or the taking of any other action) the fact that at the time
of
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taking any such action the Holders of such specified percentage have joined
therein may be evidenced (a) by any instrument or any number of instruments of
similar tenor executed by Holders in Person or by agent or proxy appointed in
writing, (b) by the record of the Holders voting in favor thereof at any
meeting of Holders duly called and held in accordance with the provisions of
Section 5.02 or (c) by a combination of such instrument or instruments and any
such record of such a meeting of Holders.
Section 8.02. PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF DEBT
SECURITIES. Subject to the provisions of Sections 7.01, 7.02 and 13.11, proof of
the execution of any instrument by a Holder or his agent or proxy shall be
sufficient if made in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee.
The ownership of Registered Securities of any series shall be proved by the Debt
Security Register or by a certificate of the Registrar for such series.
The Trustee may require such additional proof of any matter referred to in this
Section 8.02 as it shall deem necessary.
Section 8.03. WHO MAY BE DEEMED OWNER OF DEBT SECURITIES. Prior to due
presentment for registration of transfer of any Registered Security, the
Company, the Trustee, any paying agent and any Registrar may deem and treat the
Person in whose name any Registered Security shall be registered upon the books
of the Company as the absolute owner of such Registered Security (whether or not
such Registered Security shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment of or
on account of the principal of and premium, if any, and (subject to Section
2.03) interest on such Registered Security and for all other purposes, and
neither the Company nor the Trustee nor any paying agent nor any Registrar shall
be affected by any notice to the contrary; and all such payments so made to any
such Holder for the time being, or upon his order, shall be valid and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Registered Security.
None of the Company, the Trustee, any paying agent or the Registrar will have
any responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in a Global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
Section 8.04. INSTRUMENTS EXECUTED BY HOLDERS BIND FUTURE HOLDERS. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
8.01, of the taking of any action by the Holders of the percentage in aggregate
principal amount of the Debt Securities of any series specified in this
Indenture in connection with such action and subject to the following paragraph,
any Holder of a Debt Security which is shown by the evidence to be included in
the Debt Securities the Holders of which have consented to such action may, by
filing written notice with the
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Trustee at its corporate trust office and upon proof of holding as provided in
Section 8.02, revoke such action so far as concerns such Debt Security. Except
as aforesaid any such action taken by the Holder of any Debt Security shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of such Debt Security and of any Debt Security issued upon transfer thereof or
in exchange or substitution therefor, irrespective of whether or not any
notation in regard thereto is made upon such Debt Security or such other Debt
Securities. Any action taken by the Holders of the percentage in aggregate
principal amount of the Debt Securities of any series specified in this
Indenture in connection with such action shall be conclusively binding upon
the Company, the Trustee and the Holders of all the Securities of such series.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders of Registered Securities entitled to give
their consent or take any other action required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Holders of Registered
Securities at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders of Registered Securities after such record date. No such
consent shall be valid or effective for more than 120 days after such record
date unless the consent of the Holders of the percentage in aggregate principal
amount of the Debt Securities of such series specified in this Indenture shall
have been received within such 120-day period.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01. PURPOSES FOR WHICH SUPPLEMENTAL INDENTURE MAY BE ENTERED INTO
WITHOUT CONSENT OF HOLDERS. The Company, when authorized by a resolution of the
Board of Directors, and the Trustee may from time to time and at any time,
without the consent of Holders, enter into an Indenture or Indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act as in force at the date of the execution thereof) for one or more
of the following purposes:
(a) to evidence the succession pursuant to Article X of another Person
to the Company, or successive successions, and the assumption by the
Successor Company (as defined in Section 10.01) of the covenants,
agreements and obligations of the Company in this Indenture and in the
Debt Securities;
(b) to surrender any right or power herein conferred upon the Company,
to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions for the protection of the
Holders of all or any series of Debt Securities (and if such covenants
are to be for the benefit of less than all series of Debt Securities,
stating that such covenants are expressly being included solely for
the
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benefit of such series) as the Board of Directors shall consider to
be for the protection of the Holders of such Debt Securities, and to
make the occurrence, or the occurrence and continuance, of a Default
in any of such additional covenants, restrictions, conditions or
provisions a Default or an Event of Default permitting the
enforcement of all or any of the several remedies provided in this
Indenture; provided, that in respect of any such additional
covenant, restriction, condition or provision such supplemental
Indenture may provide for a particular period of grace after Default
(which period may be shorter or longer than that allowed in the case
of other Defaults) or may provide for an immediate enforcement upon
such Default or may limit the remedies available to the Trustee upon
such Default or may limit the right of the Holders of a majority in
aggregate principal amount of any or all series of Debt Securities
to waive such default;
(c) to cure any ambiguity or omission or to correct or supplement any
provision contained herein, in any supplemental Indenture or in any
Debt Securities of any series that may be defective or inconsistent
with any other provision contained herein, in any supplemental
Indenture or in the Debt Securities of such series; to convey,
transfer, assign, mortgage or pledge any property to or with the
Trustee, or to make such other provisions in regard to matters or
questions arising under this Indenture as shall not adversely affect
the interests of any Holders of Debt Securities of any series;
(d) to modify or amend this Indenture in such a manner as to permit
the qualification of this Indenture or any Indenture supplemental
hereto under the Trust Indenture Act as then in effect, except that
nothing herein contained shall permit or authorize the inclusion in
any Indenture supplemental hereto of the provisions referred to in
Section 316(a)(2) of the Trust Indenture Act;
(e) to comply with Article X;
(f) in the case of any Debt Securities subordinated pursuant to
Article XII, to make any change in Article XII that would limit or
terminate the benefits available to any holder of Senior Indebtedness
(or Representatives therefor) under Article XII;
(g) to add Guarantees with respect to any or all of the Debt
Securities or to secure any or all of the Debt Securities;
(h) to make any change that does not adversely affect the rights of
any Holder;
(i) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Debt Securities;
provided, however, that any such addition, change or elimination not
otherwise permitted under this Section 9.01 shall (i) neither (A)
apply to any Debt Security of any series created prior to the
execution of such
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supplemental indenture and entitled to the benefit of such provision
nor (B) modify the rights of the Holder of any such Debt Security
with respect to such provision or (ii) shall become effective only
when there is no such Debt Security Outstanding;
(j) to evidence and provide for the acceptance of appointment
hereunder by a successor or separate Trustee with respect to the Debt
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;
(k) to establish the form or terms of Debt Securities of any series as
permitted by Sections 2.01 and 2.03; and
(l) to provide for uncertificated Debt Securities in addition to or in
place of certificated Debt Securities (provided that the
uncertificated Debt Securities are issued in registered form for
purposes of Section 163(f) of the Internal Revenue Code of 1986, as
amended, or in a manner such that the uncertificated Debt Securities
are described in Section 163(f)(2)(B) of the Internal Revenue Code of
1986, as amended).
The Trustee is hereby authorized to join with the Company in the execution of
any such supplemental Indenture, to make any further appropriate agreements and
stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental Indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Any supplemental Indenture authorized by the provisions of this Section 9.01 may
be executed by the Company and the Trustee without the consent of the Holders of
any of the Debt Securities at the time Outstanding, notwithstanding any of the
provisions of Section 9.02.
In the case of Debt Securities subordinated pursuant to Article XII, an
amendment under this Section 9.01 may not make any change that adversely affects
the rights under Article XII of any holder of Senior Indebtedness then
outstanding unless the holders of such Senior Indebtedness (or any group or
Representative thereof authorized to give a consent) consent to such change.
After an amendment under this Section 9.01 becomes effective, the Company shall
mail to Holders of Debt Securities of each series affected thereby a notice
briefly describing such amendment. The failure to give such notice to all such
Holders, or any defect therein, shall not impair or affect the validity of an
amendment under this Section 9.01.
Section 9.02. MODIFICATION OF INDENTURE WITH CONSENT OF HOLDERS OF DEBT
SECURITIES. Without notice to any Holder but with the consent (evidenced as
provided in Section
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8.01) of the Holders of not less than a majority in aggregate principal amount
of the Outstanding Debt Securities of each series affected by such
supplemental Indenture, the Company, when authorized by a resolution of the
Board of Directors, and the Trustee may from time to time and at any time
enter into an Indenture or Indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as in force at the date of
execution thereof) for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental Indenture or of modifying in any manner the rights of the Holders
of the Debt Securities of such series; provided, that no such supplemental
Indenture, without the consent of the Holders of each Debt Security so
affected, shall (a) reduce the percentage in principal amount of Debt
Securities of any series whose Holders must consent to an amendment; (b)
reduce the rate of or extend the time for payment of interest on any Debt
Security; (c) reduce the principal of or extend the Stated Maturity of any
Debt Security; (d) reduce the premium payable upon the redemption of any Debt
Security or change the time at which any Debt Security may or shall be
redeemed in accordance with Article III; (e) make any Debt Security payable in
Currency other than that stated in the Debt Security; (f) in the case of any
Debt Security, if any, appertaining thereto subordinated pursuant to Article
XII, make any change in Article XII that adversely affects the rights of any
Holder under Article XII; (g) release any security that may have been granted
in respect of the Debt Securities; (h) impair the right of a Holder of Debt
Securities to receive payment of principal of and interest on such Holder's
Debt Securities on or after the due dates therefor or to institute suit for
the enforcement of or with respect to such Holder's Debt Securities; (i) make
any change in Section 6.06 or this Section 9.02.
A supplemental Indenture which changes or eliminates any covenant or other
provision of this Indenture which has been expressly included solely for the
benefit of one or more particular series of Debt Securities or which modifies
the rights of the Holders of Debt Securities with respect to such covenant or
other provision, shall be deemed not to affect the rights under this Indenture
of the Holders of Debt Securities of any other series.
Upon the request of the Company, accompanied by a copy of a resolution of the
Board of Directors authorizing the execution of any such supplemental Indenture,
and upon the filing with the Trustee of evidence of the consent of Holders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental Indenture unless such supplemental Indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion but shall not be obligated to enter into
such supplemental Indenture.
It shall not be necessary for the consent of the Holders under this Section 9.02
to approve the particular form of any proposed supplemental Indenture, but it
shall be sufficient if such consent shall approve the substance thereof.
In the case of any Debt Securities subordinated pursuant to Article XII, an
amendment under this Section 9.02 may not make any change that adversely affects
the rights under Article XII of any holder of Senior Indebtedness then
outstanding unless the holders of such Senior Indebtedness (or any group or
Representative thereof authorized to give a consent) consent to such change.
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After an amendment under this Section 9.02 becomes effective, the Company shall
mail to Holders of Debt Securities of each series affected thereby a notice
briefly describing such amendment. The failure to give such notice to all such
Holders, or any defect therein, shall not impair or affect the validity of an
amendment under this Section 9.02.
Section 9.03. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of any
supplemental Indenture pursuant to the provisions of this Article IX, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the Holders
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental Indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
The Trustee, subject to the provisions of Sections 7.01 and 7.02, shall be
provided an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such supplemental Indenture complies with the provisions of
this Article IX.
Section 9.04. DEBT SECURITIES MAY BEAR NOTATION OF CHANGES BY SUPPLEMENTAL
INDENTURES. Debt Securities of any series authenticated and delivered after the
execution of any supplemental Indenture pursuant to the provisions of this
Article IX 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. New Debt Securities of any series so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any modification of this
Indenture contained in any such supplemental Indenture may be prepared and
executed by the Company, authenticated by the Trustee and delivered in exchange
for the Debt Securities of such series then Outstanding. Failure to make the
appropriate notation or to issue a new Debt Security of such series shall not
affect the validity of such amendment.
Section 9.05. PAYMENT FOR CONSENT. Neither the Company nor any Affiliate of the
Company shall, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Holder for
or as an inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Debt Securities unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
ARTICLE X
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 10.01. CONSOLIDATIONS AND MERGERS OF THE COMPANY. The Company shall not
consolidate with or merge with or into any Person, or convey, transfer or lease
all or substantially all its assets, or permit any Person to consolidate with or
merge into or convey, transfer or lease
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substantially all its assets to the Company, unless: (a) either (i) the
Company shall be the continuing Person in the case of a merger or (ii) the
resulting, surviving or transferee Person if other than the Company (the
"Successor Company") shall be a corporation, limited partnership or limited
liability company organized and existing under the laws of the United States,
any State thereof or the District of Columbia and the Successor Company shall
expressly assume, by an Indenture supplemental hereto, executed and delivered
to the Trustee, in form satisfactory to the Trustee, all the obligations of
the Company under the Debt Securities, according to their tenor, and this
Indenture; (b) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor Company
or any Subsidiary of the Company as a result of such transaction as having
been Incurred by the Successor Company or such Subsidiary at the time of such
transaction), no Default or Event of Default would occur or be continuing; and
(c) the Company shall have delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger or
transfer and such supplemental Indenture (if any) comply with this Indenture.
Section 10.02. RIGHTS AND DUTIES OF SUCCESSOR CORPORATION. In case of any
consolidation or merger, or conveyance or transfer of the assets of the Company
as an entirety or virtually as an entirety in accordance with Section 10.01, the
Successor Company shall succeed to and be substituted for the Company, with the
same effect as if it had been named herein as the party of the first part, and
the predecessor corporation shall be relieved of any further obligation under
the Indenture and the Securities. The Successor Company thereupon may cause to
be signed, and may issue either in its own name or in the name of the Company,
any or all the Debt Securities issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee; and, upon the
order of the Successor Company, instead of the Company, and subject to all the
terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver any Debt Securities which previously shall
have been signed and delivered by the officers of the Company to the Trustee for
authentication, and any Debt Securities which the Successor Company thereafter
shall cause to be signed and delivered to the Trustee for that purpose. All the
Debt Securities so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Debt Securities theretofore or thereafter
issued in accordance with the terms of this Indenture as though all such Debt
Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance such changes in
phraseology and form (but not in substance) may be made in the Debt Securities
thereafter to be issued as may be appropriate.
ARTICLE XI
SATISFACTION AND DISCHARGE OF
INDENTURE; DEFEASANCE; UNCLAIMED MONEYS
Section 11.01. APPLICABILITY OF ARTICLE. If, pursuant to Section 2.03, provision
is made for the defeasance of Debt Securities of a series and if the Debt
Securities of such series are Registered
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Securities and denominated and payable only in Dollars (except as provided
pursuant to Section 2.03), then the provisions of this Article XI relating to
defeasance of Debt Securities shall be applicable except as otherwise
specified pursuant to Section 2.03 for Debt Securities of such series.
Defeasance provisions, if any, for Debt Securities denominated in a Foreign
Currency may be specified pursuant to Section 2.03.
Section 11.02. SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE.
(a) If at any time (i) the Company shall have delivered to the Trustee
for cancellation all Debt Securities of any series theretofore
authenticated and delivered (other than (A) any Debt Securities of
such series which shall have been destroyed, lost or stolen and which
shall have been replaced or paid as provided in Section 2.09 and (B)
Debt Securities for whose payment money has theretofore been deposited
in trust and thereafter repaid to the Company as provided in Section
11.05) or (ii) all Debt Securities of such series not theretofore
delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one
year or are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption, and the Company shall deposit with the Trustee as trust
funds the entire amount in the Currency in which such Debt Securities
are denominated (except as otherwise provided pursuant to Section
2.03) sufficient to pay at maturity or upon redemption all Debt
Securities of such series not theretofore delivered to the Trustee for
cancellation, including principal and premium, if any, and interest
due or to become due on such date of maturity or redemption date, as
the case may be, and if in either case the Company shall also pay or
cause to be paid all other sums payable hereunder by the Company, then
this Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of such Debt
Securities herein expressly provided for and rights to receive
payments of principal of, and premium, if any, and interest on, such
Debt Securities) with respect to the Debt Securities of such series,
and the Trustee, on demand of the Company accompanied by an Officers'
Certificate and an Opinion of Counsel and at the cost and expense of
the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture.
(b) Subject to Sections 11.02(c), 11.03 and 11.07, the Company at any
time may terminate, with respect to Debt Securities of a particular
series, all its obligations under the Debt Securities of such series
and this Indenture with respect to the Debt Securities of such series
("legal defeasance option") or the operation of Sections 6.01(e), (f),
(g) and (j) and the covenants relating to a series of Debt Securities
("covenant defeasance option"). The Company may exercise its legal
defeasance option notwithstanding its prior exercise of its covenant
defeasance option.
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If the Company exercises its legal defeasance option, payment of the
Debt Securities of the defeased series may not be accelerated because
of an Event of Default. If the Company exercises its covenant
defeasance option, payment of the Debt Securities of the defeased
series may not be accelerated because of an Event of Default specified
in Sections 6.01(c), (e), (f), (g) and (i) (except to the extent
covenants or agreements referenced in such Sections remain
applicable).
Upon satisfaction of the conditions set forth herein and upon request
of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.07, 2.09, 4.02, 4.04, 5.01, 7.06, 7.10,
11.05, 11.06 and 11.07 shall survive until the Debt Securities of the
defeased series have been paid in full. Thereafter, the Company's
obligations in Sections 7.06, 11.05 and 11.06 shall survive.
Section 11.03. CONDITIONS OF DEFEASANCE. The Company may exercise its legal
defeasance option or its covenant defeasance option with respect to Debt
Securities of a particular series only if:
(a) the Company irrevocably deposits in trust with the Trustee cash or
U.S. Government Obligations for the payment of principal of, and
premium, if any, and interest on, the Debt Securities of such series
to maturity or redemption, as the case may be;
(b) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and
without reinvestment on the deposited U.S. Government Obligations plus
any deposited money without investment will provide cash at such times
and in such amounts as will be sufficient to pay the principal,
premium and interest when due on all the Debt Securities of such
series to maturity or redemption, as the case may be;
(c) 123 days pass after the deposit is made and during the 123-day
period no Default specified in Section 6.01(g) or (h) with respect to
the Company occurs which is continuing at the end of the period;
(d) no Default has occurred and is continuing on the date of such
deposit and after giving effect thereto;
(e) if the Debt Securities of such series are subordinated pursuant to
Article XII, the deposit is not prohibited by Article XII;
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(f) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute,
or is qualified as, a regulated investment company under the
Investment Company Act of 1940;
(g) in the event of the legal defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i)
the Company has received from the Internal Revenue Service a ruling,
or (ii) since the date of this Indenture there has been a change in
the applicable Federal income tax law, in either case of the effect
that, and based thereon such Opinion of Counsel shall confirm that,
the Holders of Debt Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of
such defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such defeasance had not occurred;
(h) in the event of the covenant defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that
the Holders of Debt Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of
such covenant defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such covenant defeasance had not occurred; and
(i) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to
the defeasance and discharge of the Debt Securities of such series as
contemplated by this Article XI have been complied with.
Before or after a deposit, the Company may make arrangements satisfactory to the
Trustee for the redemption of Debt Securities of such series at a future date in
accordance with Article III.
Section 11.04. APPLICATION OF TRUST MONEY. The Trustee shall hold in trust money
or U.S. Government Obligations deposited with it pursuant to this Article XI. It
shall apply the deposited money and the money from U.S. Government Obligations
through any paying agent and in accordance with this Indenture to the payment of
principal of, and premium, if any, and interest on, the Debt Securities of the
defeased series. In the event the Debt Securities of the defeased series are
subordinated pursuant to Article XII, money and securities so held in trust are
not subject to Article XII.
Section 11.05. REPAYMENT TO COMPANY. The Trustee and any paying agent shall
promptly turn over to the Company upon request any excess money or securities
held by them at any time.
Subject to any applicable abandoned property law, the Trustee and any paying
agent shall pay to the Company upon request any money held by them for the
payment of principal, premium or interest
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that remains unclaimed for two years, and, thereafter, Holders entitled to
such money must look to the Company for payment as general creditors.
Section 11.06. INDEMNITY FOR U.S. GOVERNMENT OBLIGATIONS. The Company shall pay
and shall indemnify the Trustee and the Holders against any tax, fee or other
change imposed on or assessed against deposited U.S. Government Obligations or
the principal and interest received on such U.S. Government Obligations.
Section 11.07. REINSTATEMENT. If the Trustee or any paying agent is unable to
apply any money or U.S. Government Obligations in accordance with this Article
XI by reason of any legal proceeding or by reason of any order or judgment of
any court or government authority enjoining, restraining or otherwise
prohibiting such application, the Company's obligations under this Indenture and
the Debt Securities of the defeased series shall be revived and reinstated as
though no deposit had occurred pursuant to this Article XI until such time as
the Trustee or any paying agent is permitted to apply all such money or U.S.
Government Obligations in accordance with this Article XI.
ARTICLE XII
SUBORDINATION OF DEBT SECURITIES
Section 12.01. APPLICABILITY OF ARTICLE; AGREEMENT TO SUBORDINATE. The
provisions of this Article XII shall be applicable to the Debt Securities of any
series (Debt Securities of such series referred to in this Article XII as
"Subordinated Debt Securities") designated, pursuant to Section 2.03, as
subordinated to Senior Indebtedness. Each Holder by accepting a Subordinated
Debt Security agrees that the Indebtedness evidenced by such Subordinated Debt
Security is subordinated in right of payment, to the extent and in the manner
provided in this Article XII, to the prior payment of all Senior Indebtedness
and that the subordination is for the benefit of and enforceable by the holders
of Senior Indebtedness. All provisions of this Article XII shall be subject to
Section 12.12.
Section 12.02. LIQUIDATION, DISSOLUTION, BANKRUPTCY. Upon any payment or
distribution of the assets of the Company to creditors upon a total or partial
liquidation or a total or partial dissolution of the Company or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to the
Company or its property:
(a) holders of Senior Indebtedness shall be entitled to receive
payment in full in cash of the Senior Indebtedness (including interest
(if any), accruing on or after the commencement of a proceeding in
bankruptcy, whether or not allowed as a claim against the Company in
such bankruptcy proceeding) before Holders of Subordinated Debt
Securities shall be entitled to receive any payment of principal of,
or premium, if any, or interest on, the Subordinated Debt Securities;
and
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(b) until the Senior Indebtedness is paid in full, any distribution to
which Holders of Subordinated Debt Securities would be entitled but
for this Article XII shall be made to holders of Senior Indebtedness
as their interests may appear, except that such Holders may receive
shares of stock and any debt securities that are subordinated to
Senior Indebtedness to at least the same extent as the Subordinated
Debt Securities.
Section 12.03. DEFAULT ON SENIOR INDEBTEDNESS. The Company may not pay the
principal of, or premium, if any, or interest on, the Subordinated Debt
Securities or make any deposit pursuant to Article XI and may not repurchase,
redeem or otherwise retire (except, in the case of Subordinated Debt Securities
that provide for a mandatory sinking fund pursuant to Section 3.04, by the
delivery of Subordinated Debt Securities by the Company to the Trustee pursuant
to the first paragraph of Section 3.05) any Debt Securities (collectively, "pay
the Subordinated Debt Securities") if (a) any principal, premium or interest in
respect of Senior Indebtedness is not paid within any applicable grace period
(including at maturity) or (b) any other default on Senior Indebtedness occurs
and the maturity of such Senior Indebtedness is accelerated in accordance with
its terms unless, in either case, (i) the default has been cured or waived and
any such acceleration has been rescinded or (ii) such Senior Indebtedness has
been paid in full in cash; provided, however, that the Company may pay the
Subordinated Debt Securities without regard to the foregoing if the Company and
the Trustee receive written notice approving such payment from the
Representative of each issue of Designated Senior Indebtedness. During the
continuance of any default (other than a default described in clause (a) or (b)
of the preceding sentence) with respect to any Senior Indebtedness pursuant to
which the maturity thereof may be accelerated immediately without further notice
(except such notice as may be required to effect such acceleration) or the
expiration of any applicable grace periods, the Company may not pay the
Subordinated Debt Securities for a period (a "Payment Blockage Period")
commencing upon the receipt by the Company and the Trustee of written notice of
such default from the Representative of any Designated Senior Indebtedness
specifying an election to effect a Payment Blockage Period (a "Blockage Notice")
and ending 179 days thereafter (or earlier if such Payment Blockage Period is
terminated (A) by written notice to the Trustee and the Company from the Person
or Persons who gave such Blockage Notice, (B) by repayment in full in cash of
such Designated Senior Indebtedness or (C) because the default giving rise to
such Blockage Notice is no longer continuing). Notwithstanding the provisions
described in the immediately preceding sentence (but subject to the provisions
contained in the first sentence of this Section 12.03), unless the holders of
such Designated Senior Indebtedness or the Representative of such holders shall
have accelerated the maturity of such Designated Senior Indebtedness, the
Company may resume payments on the Subordinated Debt Securities after such
Payment Blockage Period. Not more than one Blockage Notice may be given in any
consecutive 360-day period, irrespective of the number of defaults with respect
to any number of issues of Senior Indebtedness during such period. For purposes
of this Section 12.03, no default or event of default which existed or was
continuing on the date of the commencement of any Payment Blockage Period with
respect to the Senior Indebtedness initiating such Payment Blockage Period shall
be, or be made, the basis of the commencement of a subsequent Payment Blockage
Period by the Representative of such Senior Indebtedness, whether or not within
a period of 360 consecutive days, unless such default or event of default shall
have been cured or waived for a period of not less than 90 consecutive days.
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Section 12.04. ACCELERATION OF PAYMENT OF DEBT SECURITIES. If payment of the
Subordinated Debt Securities is accelerated because of an Event of Default, the
Company or the Trustee shall promptly notify the holders of the Designated
Senior Indebtedness (or their Representatives) of the acceleration.
Section 12.05. WHEN DISTRIBUTION MUST BE PAID OVER. If a distribution is made to
Holders of Subordinated Debt Securities that because of this Article XII should
not have been made to them, the Holders who receive such distribution shall hold
it in trust for holders of Senior Indebtedness and pay it over to them as their
interests may appear.
Section 12.06. SUBROGATION. After all Senior Indebtedness is paid in full and
until the Subordinated Debt Securities are paid in full, Holders thereof shall
be subrogated to the rights of holders of Senior Indebtedness to receive
distributions applicable to Senior Indebtedness. A distribution made under this
Article XII to holders of Senior Indebtedness which otherwise would have been
made to Holders of Subordinated Debt Securities is not, as between the Company
and such Holders, a payment by the Company on Senior Indebtedness.
Section 12.07. RELATIVE RIGHTS. This Article XII defines the relative rights of
Holders of Subordinated Debt Securities and holders of Senior Indebtedness.
Nothing in this Indenture shall:
(a) impair, as between the Company and Holders of either Subordinated
Debt Securities or Debt Securities, the obligation of the Company,
which is absolute and unconditional, to pay principal of, and premium,
if any, and interest on, the Subordinated Debt Securities and the Debt
Securities in accordance with their terms; or
(b) prevent the Trustee or any Holder of either Subordinated Debt
Securities or Debt Securities from exercising its available remedies
upon a Default, subject to the rights of holders of Senior
Indebtedness to receive distributions otherwise payable to Holders of
Subordinated Debt Securities.
Section 12.08. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY. No right of any
holder of Senior Indebtedness to enforce the subordination of the Indebtedness
evidenced by the Subordinated Debt Securities shall be impaired by any act or
failure to act by the Company or by its failure to comply with this Indenture.
Section 12.09. RIGHTS OF TRUSTEE AND PAYING AGENT. Notwithstanding Section
12.03, the Trustee or any paying agent may continue to make payments on
Subordinated Debt Securities and shall not be charged with knowledge of the
existence of facts that would prohibit the making of any such payments unless,
not less than two business days prior to the date of such payment, a responsible
officer of the Trustee receives notice satisfactory to it that payments may not
be made under this Article XII. The Company, the Registrar, any paying agent, a
Representative or a holder
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of Senior Indebtedness may give the notice; provided, however, that, if an
issue of Senior Indebtedness has a Representative, only the Representative may
give the notice.
The Trustee in its individual or any other capacity may hold Senior Indebtedness
with the same rights it would have if it were not Trustee. The Registrar and any
paying agent may do the same with like rights. The Trustee shall be entitled to
all the rights set forth in this Article XII with respect to any Senior
Indebtedness which may at any time be held by it, to the same extent as any
other holder of Senior Indebtedness; and nothing in Article VII shall deprive
the Trustee of any of its rights as such holder. Nothing in this Article XII
shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 7.06.
Section 12.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE. Whenever a distribution
is to be made or a notice given to holders of Senior Indebtedness, the
distribution may be made and the notice given to their Representative (if any).
Section 12.11. ARTICLE XII NOT TO PREVENT DEFAULTS OR LIMIT RIGHT TO ACCELERATE.
The failure to make a payment pursuant to the Debt Securities by reason of any
provision in this Article XII shall not be construed as preventing the
occurrence of a Default. Nothing in this Article XII shall have any effect on
the right of the Holders or the Trustee to accelerate the maturity of either the
Subordinated Debt Securities or the Debt Securities, as the case may be.
Section 12.12. TRUST MONEYS NOT SUBORDINATED. Notwithstanding anything contained
herein to the contrary, payments from money or the proceeds of U.S. Government
Obligations held in trust under Article XI by the Trustee for the payment of
principal of, and premium, if any, and interest on, the Subordinated Debt
Securities or the Debt Securities shall not be subordinated to the prior payment
of any Senior Indebtedness or subject to the restrictions set forth in this
Article XII, and none of the Holders thereof shall be obligated to pay over any
such amount to the Company or any holder of Senior Indebtedness of the Company
or any other creditor of the Company.
Section 12.13. TRUSTEE ENTITLED TO RELY. Upon any payment or distribution
pursuant to this Article XII, the Trustee and the Holders shall be entitled to
rely (a) upon any order or decree of a court of competent jurisdiction in which
any proceedings of the nature referred to in Section 12.02 are pending, (b) upon
a certificate of the liquidating trustee or agent or other Person making such
payment or distribution to the Trustee or to such Holders or (c) upon the
Representatives for the holders of Senior Indebtedness for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other Indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
XII. In the event that the Trustee determines, in good faith, that evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article XII, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to
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participate in such payment or distribution and other facts pertinent to the
rights of such Person under this Article XII, and, if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment. The
provisions of Sections 7.01 and 7.02 shall be applicable to all actions or
omissions of actions by the Trustee pursuant to this Article XII.
Section 12.14. TRUSTEE TO EFFECTUATE SUBORDINATION. Each Holder by accepting a
Subordinated Debt Security authorizes and directs the Trustee on his behalf to
take such action as may be necessary or appropriate to acknowledge or effectuate
the subordination between the Holders of Subordinated Debt Securities and the
holders of Senior Indebtedness as provided in this Article XII and appoints the
Trustee as attorney-in-fact for any and all such purposes.
Section 12.15. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness and shall not be liable to any such holders if it shall mistakenly
pay over or distribute to Holders of Subordinated Debt Securities or the Company
or any other Person, money or assets to which any holders of Senior Indebtedness
shall be entitled by virtue of this Article XII or otherwise.
Section 12.16. RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS ON SUBORDINATION
PROVISIONS. Each Holder by accepting a Subordinated Debt Security acknowledges
and agrees that the foregoing subordination provisions are, and are intended to
be, an inducement and a consideration to each holder of any Senior Indebtedness,
whether such Senior Indebtedness was created or acquired before or after the
issuance of the Subordinated Debt Securities, to acquire and continue to hold,
or to continue to hold, such Senior Indebtedness and such holder of Senior
Indebtedness shall be deemed conclusively to have relied on such subordination
provisions in acquiring and continuing to hold, or in continuing to hold, such
Senior Indebtedness.
ARTICLE XIII
GUARANTEE OF DEBT SECURITIES
Section 13.01. APPLICABILITY OF ARTICLE. The provisions of this Article XIII
shall be applicable to the Debt Securities of any series the payment of which is
guaranteed by a Subsidiary Guarantor pursuant to Section 2.03. The Company may
cause any of its Subsidiaries to become a Subsidiary Guarantor with respect to
the Debt Securities of any series. Any such Subsidiary shall become a Subsidiary
Guarantor by executing and delivering to the Trustee (a) a supplemental
indenture, in form and substance satisfactory to, and executed by, the Trustee
and executed by the Company, which subjects such Subsidiary to the provisions of
this Indenture as a Subsidiary Guarantor and (b) an Opinion of Counsel to the
effect that such supplemental indenture has been duly authorized and executed by
such Subsidiary and constitutes the legal, valid, binding and enforceable
obligation of such Subsidiary (subject to customary exceptions concerning
creditors' rights and equitable principles).
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Section 13.02. UNCONDITIONAL GUARANTEE. Each Subsidiary Guarantor that delivers
such a supplemental indenture with respect to a series of Debt Securities hereby
jointly and severally unconditionally Guarantees to each Holder of such Debt
Security authenticated and delivered by the Trustee, and to the Trustee on
behalf of such Holder, the full and punctual payment of the principal of and
premium, if any, and interest on such Debt Security when and as the same shall
become due and payable, whether at the Stated Maturity, by acceleration, call
for redemption, purchase or otherwise, in accordance with the terms of such
Security and of this Indenture. In case of the failure of the Company punctually
to make any such payment, each Subsidiary Guarantor hereby jointly and severally
agrees to pay or cause such payment to be made punctually when and as the same
shall become due and payable, whether at the Stated Maturity, by acceleration,
call for redemption, purchase or otherwise, and as if such payment were made by
the Company.
Each Subsidiary Guarantor that delivers such a supplemental indenture with
respect to a series of Debt Securities hereby jointly and severally agrees that
its obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of such Debt Securities or this Indenture, the
absence of any action to enforce the same, any exchange, release or non-
perfection of any Lien on any collateral for, or any release or amendment or
waiver of any term of any other Guarantee of all or any of the Debt Securities,
or any consent to departure from any requirement of any other Guarantee of all
or any of the Debt Securities, the election by the Trustee or any of the Holders
in any proceeding under Chapter 11 of the Federal Bankruptcy Code, or the
application of Section 1111(b)(2) of the Federal Bankruptcy Code, any borrowing
or grant of a security interest by the Company, as debtor-in-possession, under
Section 364 of the Federal Bankruptcy Code, the disallowance, under Section 502
of the Federal Bankruptcy Code, of all or any portion of the claims of the
Trustee or any of the Holders for payment of any of the Securities (including,
without limitation, any interest, or premium thereon), any waiver or consent by
the Holder of such Debt Security or by the Trustee with respect to any
provisions thereof or of this Indenture or with respect to the provisions of
this Article XIII as they apply to any other Subsidiary Guarantor, the obtaining
of any judgment against the Company or any action to enforce the same or any
other circumstances which might otherwise constitute a legal or equitable
discharge or defense of a guarantor. Each such Subsidiary Guarantor hereby
waives the benefits of diligence, presentment, demand of payment, any
requirement that the Trustee or any of the Holders protect, secure, perfect or
insure any security interest in or other Lien on any property subject thereto or
exhaust any right or take any action against the Company or any other Person,
filing of claims with a court in the event of insolvency or bankruptcy of the
Company, any right to require a proceeding first against the Company, protest or
notice with respect to such Security or the Indebtedness evidenced thereby and
all demands whatsoever, and covenants that its Subsidiary Guarantee will not be
discharged in respect of such Debt Security except by complete performance of
the obligations contained in such Debt Security and in such Subsidiary
Guarantee. Each Subsidiary Guarantor hereby agrees that, in the event of a
default in payment of principal of or premium, if any, or interest on such Debt
Security, whether at their Stated Maturity, by acceleration, call for
redemption, purchase or otherwise, legal proceedings may be instituted by the
Trustee on behalf of, or by, the Holder of such Security, subject to the terms
and conditions set forth in this Indenture, directly against all or any of the
Subsidiary Guarantors to enforce their respective Subsidiary Guarantees without
first proceeding against the Company. Each
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Subsidiary Guarantor agrees that if, after the occurrence and during the
continuance of an Event of Default, the Trustee or any of the Holders are
prevented by applicable law from exercising their respective rights to
accelerate the maturity of the Debt Securities guaranteed by such Subsidiary
Guarantor, to collect interest on such Debt Securities, or to enforce or
exercise any other right or remedy with respect to such Debt Securities, such
Subsidiary Guarantor agrees to pay to the Trustee for the account of the
Holders, upon demand therefor, the amount that would otherwise have been due
and payable had such rights and remedies been permitted to be exercised by the
Trustee or any of the Holders.
Each Subsidiary Guarantor shall be subrogated to all rights of the Holders of
the Debt Securities against the Company in respect of any amounts paid by that
Subsidiary Guarantor on account of such Debt Securities pursuant to the
provisions of its Subsidiary Guarantee of this Indenture; provided, however,
that no Subsidiary Guarantor shall be entitled to enforce or to receive any
payments arising out of, or based upon, such right of subrogation until the
principal of and premium, if any, and interest, if any, on all Debt Securities
issued hereunder related to such Subsidiary Guarantee shall have been paid in
full.
Each Subsidiary Guarantee shall remain in full force and effect and continue to
be effective if any petition is filed by or against the Company for liquidation
or reorganization, if the Company becomes insolvent or makes an assignment for
the benefit of creditors or if a receiver or trustee is appointed for all or any
significant part of the Company's assets, and shall, to the fullest extent
permitted by law, continue to be effective or be reinstated, as the case may be,
if at any time payment and performance of the Securities is, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by an obligee on the Securities whether as a "voidable preference,"
"fraudulent transfer," or otherwise, all as though such payment or performance
has not been made. If any payment, or any part thereof, is rescinded, reduced,
restored or returned, the Securities shall, to the fullest extent permitted by
law, be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
The Subsidiary Guarantors shall have the right to seek contribution from any
non-paying Subsidiary Guarantor so long as the exercise of such right does not
impair the rights of the Holders under the Subsidiary Guarantees or under this
Article XIII in accordance with Section 13.07.
Section 13.03. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEES. The Subsidiary
Guarantee to be endorsed on the Debt Securities shall be set forth in a
resolution of the Board of Directors or a supplemental indenture authorizing the
series of Debt Securities relating to such Subsidiary Guarantee. Each Subsidiary
Guarantor that delivers a supplemental indenture with respect to a series of
Debt Securities pursuant to Section 13.01 hereby agrees to execute its
Subsidiary Guarantee, in a form established pursuant to the resolution or
supplemental indenture referred to in the preceding sentence, to be endorsed on
each such Debt Security authenticated and delivered by the Trustee.
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The Subsidiary Guarantee shall be executed on behalf of each respective
Subsidiary Guarantor by any one of such Subsidiary Guarantor's Officers,
attested by its secretary or assistant secretary. The signature of any or all of
these Officers on the Subsidiary Guarantee may be manual or facsimile. A
Subsidiary Guarantee bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of a Subsidiary Guarantor shall bind
such Subsidiary Guarantor, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and delivery of the
Debt Security on which such Subsidiary Guarantee is endorsed or did not hold
such offices at the date of such Subsidiary Guarantee.
The delivery of any Security by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Subsidiary Guarantee endorsed
thereon on behalf of the Subsidiary Guarantors. Each Subsidiary Guarantor hereby
jointly and severally agrees that its Subsidiary Guarantee set forth in Section
13.1 shall remain in full force and effect notwithstanding any failure to
endorse a Subsidiary Guarantee on any Security.
Section 13.04. LIMITATION ON MERGER OR CONSOLIDATION. No Subsidiary Guarantor
(in this Section 13.4, the "Subject Subsidiary Guarantor") may consolidate with
or merge with or into (whether or not the Subject Subsidiary Guarantor is the
surviving Person), or sell, assign, convey, transfer, lease or otherwise dispose
of all or substantially all the properties of the Subject Subsidiary Guarantor
to another Person (other than the Company or another Subsidiary Guarantor),
whether or not affiliated with the Subject Subsidiary Guarantor, unless:(i) the
Person formed by or surviving any such consolidation or merger (if other than
the Subject Subsidiary Guarantor) assumes all the obligations of the Subject
Subsidiary Guarantor under the Debt Securities guaranteed by such Subject
Subsidiary Guarantor pursuant to a supplemental indenture, in form and substance
satisfactory to the Trustee; and (ii) immediately after giving effect to such
transaction, no Default or Event of Default exists.
Except as set forth in Articles VIII hereof, nothing contained in this Indenture
or in any of the Securities shall prevent any consolidation or merger of a
Subsidiary Guarantor with or into the Company or another Subsidiary Guarantor or
shall prevent any sale or conveyance of the property of a Subsidiary Guarantor
as an entirety or substantially as an entirety to the Company or another
Subsidiary Guarantor.
Section 13.05. RELEASE OF SUBSIDIARY GUARANTORS.
(a) In the event of a sale or other disposition of all the properties
and assets of any Subsidiary Guarantor, by way of merger,
consolidation or otherwise, or a sale or other disposition of all the
Equity Interests of any Subsidiary Guarantor, in each case subject to
and as permitted by the terms of this Indenture, including, without
limitation, Section 13.04, and upon delivery by the Company to the
Trustee of an Officers' Certificate and an Opinion of Counsel to the
effect that such consolidation, merger, sale or other disposition was
made in accordance with Section 13.04 hereof, the Trustee shall
execute any documents reasonably required in order to evidence the
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release of that Subsidiary Guarantor (in the event of a sale of or
other disposition, by way of such a merger, consolidation or
otherwise, of all the equity interests of that Subsidiary Guarantor)
from its obligations under its Subsidiary Guarantees endorsed on the
appropriate Debt Securities and under this Article XIII.
(b) Concurrently with the legal or the covenant defeasance of the
Securities under Section 11.2 hereof, the Subsidiary Guarantors shall
be released from all of their obligations under their Subsidiary
Guarantees endorsed on the Debt Securities and under this Article
XIII.
Section 13.06. LIMITATION OF SUBSIDIARY GUARANTOR'S LIABILITY. Each Subsidiary
Guarantor, and by its acceptance hereof each Holder, hereby confirms that it is
the intention of all such parties that the Guarantee by that Subsidiary
Guarantor pursuant to its Subsidiary Guarantee not constitute a fraudulent
transfer or conveyance for purposes of the Federal Bankruptcy Code, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
Federal or state law. To effectuate the foregoing intention, the Holders and
such Subsidiary Guarantor hereby irrevocably agree that the obligations of such
Subsidiary Guarantor under its Subsidiary Guarantee shall be limited to the
maximum amount that, after giving effect to all other contingent and fixed
liabilities of such Subsidiary Guarantor and after giving effect to any
collections from or payments made by or on behalf of any other Subsidiary
Guarantor in respect of the obligations of such other Subsidiary Guarantor under
its Subsidiary Guarantee or pursuant to Section 13.7, result in the obligations
of that Subsidiary Guarantor under its Subsidiary Guarantee not constituting
such a fraudulent transfer or conveyance under federal or state law.
Section 13.07. CONTRIBUTION. In order to provide for just and equitable
contribution among the Subsidiary Guarantors, the Subsidiary Guarantors agree,
inter se, that in the event any payment or distribution is made by any
Subsidiary Guarantor (a "Funding Subsidiary Guarantor") under its Subsidiary
Guarantee with respect to a series of Debt Securities, and so long as the
exercise of such right does not impair the rights of the Holders under the
Subsidiary Guarantees or under this Article XIII, such Funding Subsidiary
Guarantor shall be entitled to a contribution from all other Subsidiary
Guarantors of such series in a pro rata amount, based on the net assets of each
Subsidiary Guarantor (including the Funding Subsidiary Guarantor), determined in
accordance with GAAP, subject to Section 13.03, for all payments, damages and
expenses incurred by that Funding Subsidiary Guarantor in discharging the
Company's obligations with respect to the Debt Securities of such series or any
other Subsidiary Guarantor's obligations with respect to its Subsidiary
Guarantee.
Section 13.08. SUBORDINATION OF GUARANTEES. If Article XII is applicable to a
series of Debt Securities, then unless otherwise provided pursuant to Section
2.03, the obligations of each of the Subsidiary Guarantors under its Guarantee
with respect to such series of Subordinated Debt Securities pursuant to this
Article XIII shall be junior and subordinated to the Senior Indebtedness of the
Subsidiary Guarantor pursuant to Article XII hereof. For the purposes of the
foregoing sentence, the Trustee and the Holders shall have the right to receive
and/or retain payments or distributions by or on behalf of any of such
Subsidiary Guarantor only at such time as they may
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receive and/or retain payments in respect of such series of Subordinated Debt
Securities pursuant to this Indenture, including Article XII hereof.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
Section 14.01. SUCCESSORS AND ASSIGNS OF COMPANY BOUND BY INDENTURE. All the
covenants, stipulations, promises and agreements in this Indenture contained by
or in behalf of the Company or the Trustee shall bind its successors and
assigns, whether so expressed or not.
Section 14.02. ACTS OF BOARD, COMMITTEE OR OFFICER OF SUCCESSOR COMPANY VALID.
Any act or proceeding by any provision of this Indenture authorized or required
to be done or performed by any board, committee or officer of the Company shall
and may be done and performed with like force and effect by the like board,
committee or officer of any Successor Company.
Section 14.03. REQUIRED NOTICES OR DEMANDS. Except as otherwise expressly
provided in this Indenture, any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
the Holders to or on the Company may be given or served by being deposited
postage prepaid in a post office letter box in the United States or by overnight
carrier addressed (until another address is filed by the Company with the
Trustee) as follows: RTI International Metals, Inc., 1000 Warren Avenue, Niles,
Ohio 44446, Attention: Chief Financial Officer. Except as otherwise expressly
provided in this Indenture, any notice, direction, request or demand by the
Company or by any Holder to or upon the Trustee may be given or made, for all
purposes, by being deposited postage prepaid in a post office letter box in the
United States addressed to the corporate trust office of the Trustee initially
at One North State Street, 9th Floor, Chicago, Illinois 60602; Attention:
Corporate Trust Administration; such notice shall be deemed given upon receipt
by the Trustee. The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice required or permitted to a Registered Holder by the Company or the
Trustee pursuant to the provisions of this Indenture shall be deemed to be
properly mailed by being deposited postage prepaid in a post office letter box
in the United States addressed to such Holder at the address of such Holder as
shown on the Debt Security Register. Any report pursuant to Section 313 of the
Trust Indenture Act shall be transmitted in compliance with subsection (c)
therein.
In the event of suspension of regular mail service or by reason of any other
cause it shall be impracticable to give notice by mail, then such notification
as shall be given with the approval of the Trustee shall constitute sufficient
notice for every purpose hereunder.
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In the event of suspension of publication of any Authorized Newspaper or by
reason of any other cause it shall be impracticable to give notice by
publication, then such notification as shall be given with the approval of the
Trustee shall constitute sufficient notice for every purpose hereunder.
Failure to mail a notice or communication to a Holder or any defect in it or any
defect in any notice by publication as to a Holder shall not affect the
sufficiency of such notice with respect to other Holders. If a notice or
communication is mailed or published in the manner provided above, it is
conclusively presumed duly given.
Section 14.04. INDENTURE AND DEBT SECURITIES TO BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK. This Indenture, each Debt Security and
Subsidiary Guarantee shall be deemed to be New York contracts, and for all
purposes shall be construed in accordance with the laws of said State (without
reference to principles of conflicts of law).
Section 14.05. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL TO BE FURNISHED UPON
APPLICATION OR DEMAND BY THE COMPANY. Upon any application or demand by the
Company to the Trustee to take any action under any of the provisions of this
Indenture, the Company shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent provided for in this Indenture relating to
the proposed action have been complied with and an Opinion of Counsel stating
that, in the opinion of such counsel, all such conditions precedent have been
complied with, except that in the case of any such application or demand as to
which the furnishing of such document is specifically required by any provision
of this Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and delivered to the
Trustee with respect to compliance with a condition or covenant provided for in
this Indenture shall include (a) a statement that the Person making such
certificate or opinion has read such covenant or condition, (b) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based, (c) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
Section 14.06. PAYMENTS DUE ON LEGAL HOLIDAYS. In any case where the date of
maturity of interest on or principal of and premium, if any, on the Debt
Securities of a series or the date fixed for redemption or repayment of any Debt
Security or the making of any sinking fund payment shall not be a business day
at any Place of Payment for the Debt Securities of such series, then payment of
interest or principal and premium, if any, or the making of such sinking fund
payment need not be made on such date at such Place of Payment, but may be made
on the next succeeding business day at such Place of Payment with the same force
and effect as if made on the date of maturity or
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the date fixed for redemption, and no interest shall accrue for the period
after such date. If a record date is not a business day, the record date shall
not be affected.
Section 14.07. PROVISIONS REQUIRED BY TRUST INDENTURE ACT TO CONTROL. If and to
the extent that any provision of this Indenture limits, qualifies or conflicts
with another provision included in this Indenture which is required to be
included in this Indenture by any of Sections 310 to 318, inclusive, of the
Trust Indenture Act, such required provision shall control.
Section 14.08. COMPUTATION OF INTEREST ON DEBT SECURITIES. Interest, if any, on
the Debt Securities shall be computed on the basis of a 360-day year of twelve
30-day months, except as may otherwise be provided pursuant to Section 2.03.
Section 14.09. RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR. The Trustee may
make reasonable rules for action by or a meeting of Holders. The Registrar and
any paying agent may make reasonable rules for their functions.
Section 14.10. NO RECOURSE AGAINST OTHERS. An incorporator or any past, present
or future director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the Debt
Securities or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Debt Security, each
Holder shall waive and release all such liability. The waiver and release shall
be part of the consideration for the issue of the Debt Securities.
Section 14.11. SEVERABILITY. In case any provision in this Indenture, the Debt
Securities 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 14.12. EFFECT OF HEADINGS. The article and section headings herein and
in the Table of Contents are for convenience only and shall not affect the
construction hereof.
Section 14.13. INDENTURE MAY BE EXECUTED IN COUNTERPARTS. This Indenture may be
executed in any number of counterparts, each of which shall be an original; but
such counterparts shall together constitute but one and the same instrument.
The Trustee hereby accepts the trusts in this Indenture upon the terms and
conditions herein set forth.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
signed as of the date first written above.
RTI INTERNATIONAL METALS, INC.,
By:
_______________________________________________
Name:
_____________________________________________
Title:
____________________________________________
THE FIRST NATIONAL BANK OF CHICAGO
as TRUSTEE
By:
_______________________________________________
Name:
_____________________________________________
Title:
____________________________________________
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Exhibit 5.1
[LOGO OF DOEPKEN KEEVICAN & WEISS]
Professional Corporation
Attorneys at Law
Fax: (412) 355-2609 58th Floor, USX Tower Cleveland
E-Mail: [email protected] 600 Grant Street Detroit
Pittsburgh, Pennsylvania 15219-2703
Writer's Direct Dial:
(412) 355-2600
[email protected]
September 7, 1999
RTI International Metals, Inc.
1000 Warren Avenue
Niles, OH 44446
Re: RTI International Metals, Inc.
Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
We have acted as counsel for RTI International Metals, Inc., an Ohio
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended (the "Securities Act"), of $100,000,000
aggregate principal amount of the Company's debt securities ("Debt Securities");
preferred stock, par value $0.01 per share ("Preferred Stock"); common stock,
par value $0.01 per share ("Common Stock"); and warrants to purchase Debt
Securities, Common Stock, Preferred Stock or other securities ("Warrants"). The
Debt Securities, Preferred Stock, Common Stock and Warrants are herein referred
to collectively as the "Securities". The Securities may be issued from time to
time by the Company after the registration statement to which this opinion is an
exhibit (the "Registration Statement") becomes effective. The terms used
herein, unless otherwise defined, have the meanings assigned to them in the
Registration Statement.
We have examined such documents as we have considered necessary for
purposes of this opinion, including (i) the Indenture in the form of Exhibit 4.3
to the Registration Statement to be executed by the Company and the trustee (the
"Indenture"), (ii) the amended Articles of Incorporation and By-Laws of the
Company, and such other documents and matters of law as we have deemed necessary
in connection with the opinions 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 to authentic originals
of all documents submitted
<PAGE>
[LOGO OF DOEPKEN KEEVICAN & WEISS]
RTI International Metals, Inc.
September 7, 1999
Page 2
to us as certified copies or photocopies. In
rendering the opinions expressed below, we have relied on factual
representations by Company officials and statements of fact contained in the
documents we have examined.
Based on the foregoing, and subject to the assumptions, exceptions and
qualifications stated below, we are of the opinion that:
1. With respect to Debt Securities to be issued under the Indenture,
when (a) the Indenture has been duly authorized and validly executed and
delivered by the Company to the trustee, (b) the Indenture has been duly
qualified under the Trust Indenture Act of 1939, (c) the Company's Board of
Directors or, to the extent permitted by law, a duly constituted and acting
committee thereof (such Board of Directors or committee being hereinafter
referred to as the "Board") has taken all necessary corporate action to approve
the issuance and terms of such Debt Securities, the terms of the offering
thereof and related matters, and (d) such Debt Securities have been duly
executed, authenticated, issued and delivered in accordance with the provisions
of the Indenture and the applicable definitive purchase, underwriting or similar
agreement approved by the Board upon payment of the consideration therefor
provided for therein, such Debt Securities will be legally issued and will
constitute valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms.
2. With respect to shares of Common Stock, when both (a) the Board
has taken all necessary corporate action to approve the issuance of and the
terms of the offering of the shares of Common Stock and related matters and (b)
certificates representing the shares of Common Stock have been duly executed,
countersigned, registered and delivered either (i) in accordance with the
applicable definitive purchase, underwriting or similar agreement approved by
the Company's Board upon payment of the consideration therefor (not less than
the par value of the Common Stock) provided for therein or (ii) upon conversion
or exercise of any other Security, in accordance with the terms of such Security
or the instrument governing such Security providing for such conversion or
exercise as approved by the Board, for the consideration approved by the Board
(not less than the par value of the Common Stock), then the shares of Common
Stock will be legally issued, fully paid and nonassessable.
3. With respect to shares of Preferred Stock, when both (a) the
Board has taken all necessary corporate action to approve the issuance and terms
of the shares of Preferred Stock, the terms of the offering thereof, and related
matters, including the adoption of a Certificate of Designation relating to such
Preferred Stock (a "Certificate") and the filing of the Certificate with the
Secretary of State of the State of Ohio, and (b) certificates representing the
shares of Preferred Stock have been duly executed, countersigned, registered and
delivered either (i) in accordance with the applicable definitive purchase,
underwriting or similar agreement approved by the Board upon payment of the
consideration therefor (not less than the par value of the Preferred Stock)
provided for therein or (ii) upon conversion or exercise of any other Security,
in accordance with the terms
<PAGE>
[LOGO OF DOEPKEN KEEVICAN & WEISS]
RTI International Metals, Inc.
September 7, 1999
Page 3
of such Security or the instrument governing such Security providing for such
conversion or exercise as approved by the Board, for the consideration approved
by the Board (not less than the par value of the Preferred Stock), then the
shares of Preferred Stock will be legally issued, fully paid and nonassessable.
4. With respect to the Warrants, when (a) the Board has taken all
necessary corporate action to approve the creation of and the issuance and terms
of the Warrants, the terms of the offering thereof, and related matters, (b) the
warrant agreement or agreements relating to the Warrants have been duly
authorized and validly executed and delivered by the Company and the warrant
agent appointed by the Company, and (c) the Warrants or certificates
representing the Warrants have been duly executed, countersigned, registered and
delivered in accordance with the appropriate warrant agreement or agreements and
the applicable definitive purchase, underwriting or similar agreement approved
by the Company's Board upon payment of the consideration therefor provided for
therein, the Warrants will be legally issued.
The opinions expressed above are subject in all respects to the
following assumptions, exceptions and qualifications:
a. We have assumed that (a) the Registration Statement and any
amendments thereto (including post-effective amendments) will have become
effective and comply with all applicable laws; (b) the Registration Statement
will be effective and will comply with all applicable laws at the time the
Securities are offered or issued as contemplated by the Registration Statement;
(c) a Prospectus Supplement will have been prepared and filed with the
Securities and Exchange Commission describing the Securities offered thereby and
will comply with all applicable laws; (d) all Securities will be issued and sold
in compliance with applicable federal and state securities laws and in the
manner stated in the Registration Statement and the appropriate Prospectus
Supplement; (e) a definitive purchase, underwriting or similar agreement with
respect to any Securities offered or issued will have been duly authorized and
validly executed and delivered by the Company and the other parties thereto; (f)
any Securities issuable upon conversion, exchange or exercise of any Security
being offered or issued will be duly authorized, created and, if appropriate,
reserved for issuance upon such conversion, exchange or exercise; and (g) any
Securities to be issued in accordance with the Registration Statement or the
supplemental prospectuses are authorized by the Amended Articles of
Incorporation of the Company.
b. In rendering the opinions in paragraph 1, we have assumed that
the trustee is or, at the time the Indenture is signed, will be qualified to act
as trustee under the Indenture and that the trustee has or will have duly
executed and delivered the Indenture.
c. The enforceability of the Indenture and the Debt Securities and
provisions thereof may be limited by bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium or other similar laws now or hereinafter in
effect relating to or affecting enforcement of creditors'
<PAGE>
[LOGO OF DOEPKEN KEEVICAN & WEISS]
RTI International Metals, Inc.
September 7, 1999
Page 4
rights generally and by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law). Such principles
or equity include, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing, and also to the possible unavailability of specific
performance or injunctive relief.
d. We express no opinion with respect to (a) the enforceability of
provisions in the Indenture, or any other agreement or instrument with respect
to delay or omission of enforcement of rights or remedies, or waivers of notices
or defenses, or waivers of benefits of, or other rights that cannot be
effectively waived under, applicable laws; or (b) the enforceability of
indemnification provisions to the extent they purport to relate to liabilities
resulting from or based upon negligence or any violation of federal or state
securities or blue sky laws.
e. We note that the Indenture by its terms purports to be governed
by the laws of the State of New York and that the terms of the Warrants, when
determined, may be governed by the laws of a jurisdiction other than the State
of Ohio. While we express no opinion with respect to the laws of the State of
New York or such other jurisdictions in rendering these opinions, we have
assumed that the internal laws of the State of New York and such other
jurisdictions are the same as the internal laws of the State of Ohio.
f. The opinions expressed in this letter are limited to the laws of
the State of Ohio and the federal laws of the United States of America.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the Prospectus. In giving this consent, we do not admit that this
firm is in the category of persons whose consent is required under Section 7 of
the Act or the rules and regulations promulgated thereunder.
Very truly yours,
/s/ DOEPKEN KEEVICAN & WEISS
PROFESSIONAL CORPORATION
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated January 25, 1999, relating to the
financial statements of RTI International Metals, Inc., which appears on page 24
of RTI's Annual Report on Form 10-K for the year ended December 31, 1998. We
also consent to the reference to us under the heading "Experts" in this
Registration Statement.
/s/ PricewaterhouseCoopers
PricewaterhouseCoopers LLP
Pittsburgh, Pennsylvania
September 7, 1999
<PAGE>
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) _____
---------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
-------------------------
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
- ------------------------------------------- -------------------------
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
-----------------------------------
RTI INTERNATIONAL METALS, INC.
(Exact name of obligor as specified in its charter)
Ohio 52-2115953
- ------------------------------- ------------------------
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
1000 Warren Avenue
Niles, Ohio 44446
- --------------------------------------- ------------------------
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of Indenture Securities)
<PAGE>
Item 1. General Information. Furnish the following information as to the
--------------------
trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of Currency, Washington, D.C.;
Federal Deposit Insurance Corporation, Washington, D.C.;
The Board of Governors of the Federal Reserve System, Washington D.C..
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations With the Obligor. If the obligor is an affiliate of the
------------------------------
trustee, describe each such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a part of this
-----------------
Statement of Eligibility.
1. A copy of the articles of association of the trustee now in
effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise corporate
trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the Act.
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.
2
<PAGE>
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the
trustee, The First National Bank of Chicago, a national banking association
organized and existing under the laws of the United States of America, has duly
caused this Statement of Eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Chicago and State of
Illinois, on the 18th day of August, 1999.
The First National Bank of Chicago, Trustee
By /s/ Sandra L. Caruba
-------------------------------------
Sandra L. Caruba
Vice President
* Exhibits 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 of The First National
Bank of Chicago, filed as Exhibit 25 to the Registration Statement on Form
S-3 of U S WEST Capital Funding, Inc., filed with the Securities and
Exchange Commission on May 6, 1998 (Registration No. 333-51907-01).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
August 18, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of the Indenture between RTI International
Metals, Inc. and The First National Bank of Chicago, as Trustee, the
undersigned, in accordance with Section 321(b) of the Trust Indenture Act of
1939, as amended, hereby consents that the reports of examinations of the
undersigned, made by Federal or State authorities authorized to make such
examinations, may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By: /s/ Sandra L. Caruba
-------------------------------------
Sandra L. Caruba
Vice President
4
<PAGE>
EXHIBIT 7
<TABLE>
<S> <C> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 03/31/99 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for March 31, 1999
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in thousands C400
RCFD BIL MIL THOU -------
-------- ----------------
ASSETS
<S> <C> <C> <C> <C>
1. Cash and balances due from depository institutions (from Schedule
RC-A):........................................................... RCFD
----------
a. Noninterest-bearing balances and currency and coin(1)........ 0081 3,809,517 1.a
b. Interest-bearing balances(2)................................. 0071 4,072,166 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A).... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B,
column D).................................................... 1773 12,885,728 2.b
3. Federal funds sold and securities purchased under agreements to
resell........................................................... 1350 4,684,756 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule...... RCFD
----------
RC-C)............................................................ 2122 34,304,806 4.a
b. LESS: Allowance for loan and lease losses.................... 3123 411,476 4.b
c. LESS: Allocated transfer risk reserve........................ 3128 3,884 4.c
d. Loans and leases, net of unearned income, allowance, and..... RCFD
----------
reserve (item 4.a minus 4.b and 4.c)............................. 2125 33,889,446 4.d
5. Trading assets (from Schedule RD-D).............................. 3545 5,100,499 5.
6. Premises and fixed assets (including capitalized leases)......... 2145 754,052 6.
7. Other real estate owned (from Schedule RC-M)..................... 2150 5,244 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)................................... 2130 201,068 8.
9. Customers' liability to this bank on acceptances outstanding..... 2155 265,041 9.
10. Intangible assets (from Schedule RC-M)........................... 2143 285,709 10.
11. Other assets (from Schedule RC-F)................................ 2160 2,987,184 11.
12. Total assets (sum of items 1 through 11)......................... 2170 68,940,410 12.
</TABLE>
___________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
<TABLE>
<S> <C> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 03/31/99 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands
-------------------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
RCON
a. In domestic offices (sum of totals of columns -----------
A and C from Schedule RC-E, part 1)............. 2200 22,163,664 13.a
(1) Noninterest-bearing(1)...................... 6631 9,740,100 13.a1
(2) Interest-bearing............................ 6636 12,423,564 13.a2
b. In foreign offices, Edge and Agreement subsidiaries,
and IBFs (from Schedule......................... RCFN
----------
RC-E, part II).................................. 2200 19,273,426 13.b
(1) Noninterest bearing......................... 6631 334,741 13.b1
(2) Interest-bearing............................ 6636 18,938,685 13.b2
14. Federal funds purchased and securities sold under
agreements to repurchase............................. RCFD 2800 4,405,792 14
15. a. Demand notes issued to the U.S. Treasury........ RCON 2840 173,505 15.a
b. Trading Liabilities (from Schedule RC-D)........ RCFD 3548 4,824,567 15.b
16. Other borrowed money: RCFD
----------
a. With original maturity of one year or less...... 2332 7,453,761 16.a
b. With original maturity of more
than one year................................... A547 330,300 16.b
c. With original maturity of more
than three years................................ A548 357,737 16.c
17. Not applicable
18. Bank's liability on acceptance executed and
outstanding.......................................... 2920 265,041 18.
19. Subordinated notes and
debentures........................................... 3200 2,600,000 19.
20. Other liabilities (from
Schedule RC-G)....................................... 2930 1,878,367 20.
21. Total liabilities (sum of items
13 through 20)....................................... 2948 63,726,160 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus........ 3838 0 23.
24. Common stock......................................... 3230 200,858 24.
25. Surplus (exclude all surplus related to
preferred stock)..................................... 3839 3,239,836 25.
26. a. Undivided profits and capital reserves......... 3632 1,813,367 26.a
b. Net unrealized holding gains (losses) on
available-for-sale securities.................. 8434 (37,357) 26.b
c. Accumulated net gains (losses)
on cash flow hedges.................................. 4336 0 26.c
27. Cumulative foreign currency
translation adjustments.............................. 3284 (2,454) 27.
28. Total equity capital (sum of
items 23 through 27)................................. 3210 5,214,250 28.
29. Total liabilities, limited-life preferred
stock, and equity capital (sum of items
21, 22, and 28)...................................... 3300 68,940,410 29.
</TABLE>
Memorandum
Number
To be reported only with the March Report of Condition. N/A M.1.
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the
bank by independent external auditors as of any date during 1996...RCFD 6724
1 = Independent audit of the bank 4 = Director's examination of the
conducted in accordance with bank performed by other external
generally accepted auditing auditors (may be required by state
standards by a certified public chartering authority)
accounting firm which submits a 5 = Review of the bank's financial
report on the bank statements by external auditors
2 = Independent audit of the bank's 6 = Compilation of the bank's
parent holding company conducted in financial statements by external
accordance with generally accepted auditors
auditing standards by a certified 7 = Other audit procedures
public accounting firm which submits (excluding tax preparation work)
a report on the consolidated holding 8 = No external audit work
company (but not on the bank
separately)
3 = Director's examination of the
bank conducted in accordance with
generally accepted auditing
standards by a certified public
accounting firm (may be required by
state chartering authority)
- ----------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
