<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON March 3, 1999
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549-1004
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
DELPHI AUTOMOTIVE SYSTEMS CORPORATION
(Exact name of registrant as
specified in its charter)
State of Delaware 38-3430473
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5725 Delphi Drive, Troy, Michigan 48098
(248)813-2000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
---------------
Alan S. Dawes
Chief Financial Officer and Vice President
Delphi Automotive Systems Corporation
5725 Delphi Drive
Troy, Michigan 48098
(248)813-2000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
----------------------------
Copies to:
Logan G. Robinson, Esq. F. Douglas Raymond, III, Esq.
Vice President and General Counsel Drinker Biddle & Reath LLP
Delphi Automotive Systems Corporation 1345 Chestnut Street
5725 Delphi Drive Philadelphia, Pennsylvania 19107-3496
Troy, Michigan 48098 (215)988-2700
(248)813-2000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after the effective date of this Registration Statement depending
upon market conditions and other factors.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to rule
434, please check the following box. |_|
<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
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PROPOSED
TITLE OF EACH MAXIMUM
CLASS OF AGGREGATE AMOUNT OF
SECURITIES TO OFFERING REGISTRATION
BE REGISTERED PRICE(1) FEE
<S> <C> <C>
Debt Securities (2) $2,500,000,000 (2) $695,000
Total $695,000
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</TABLE>
(1) Exclusive of accrued interest and estimated solely for the purpose of
computing the registration fee under Rule 457(o) of the Securities Act of 1933,
as amended.
(2) Or, if any debt securities are issued at an original issue discount, such
greater amount as shall result in an aggregate public offering price of
$2,500,000,000
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE> 2
SUBJECT TO COMPLETION, DATED , 1999
PROSPECTUS
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U.S. $2,500,000,000
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DELPHI AUTOMOTIVE SYSTEMS CORPORATION
5725 DELPHI DRIVE
TROY, MICHIGAN 48098
(248)813-2000
DEBT SECURITIES
We may offer to sell up to U.S. $2,500,000,000 of our debt securities
in one or more offerings. In this prospectus, we describe generally the terms of
these securities. We will describe the specific terms of the securities that we
offer in a supplement to this prospectus at the time of each offering. If any
offering involves underwriters, dealers or agents, we will describe our
arrangements with them in the prospectus supplement that relates to that
offering.
SEE "RISK FACTORS" ON PAGE 5 FOR INFORMATION YOU SHOULD CONSIDER BEFORE
BUYING THESE SECURITIES.
----------------
The Securities and Exchange Commission and State Securities regulators have not
approved or disapproved these securities, or determined if this prospectus is
truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is March 3, 1999
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THE INFORMATION CONTAINED IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED.
WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND WE ARE NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
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<PAGE> 3
TABLE OF CONTENTS
Page
----
About this Prospectus...............................2
Where You Can Find More Information.................3
The Company.........................................4
Risk Factors .......................................5
Use of Proceeds.....................................6
Ratio of Earnings to Fixed
Charges............................................6
Description of Debt Securities......................6
Plan of Distribution...............................17
Experts............................................19
Legal Opinions.....................................19
---------------------------
You should rely only on the information incorporated by reference or
contained in this prospectus and any applicable prospectus supplement. We have
not authorized anyone to provide you with information different from that
contained in this prospectus. We are offering to sell, and seeking offers to
buy, our securities only in jurisdictions where offers and sales are permitted.
The information contained in this prospectus or the applicable prospectus
supplement is accurate only as of the date on the front of those documents,
regardless of the time of delivery of this prospectus or the applicable
prospectus supplement or of any sale of our securities.
In this prospectus, "we", "us", "our" and the "Company" each refers to
Delphi Automotive Systems Corporation.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we have filed
with the Securities and Exchange Commission using a "shelf" registration
process. Under this shelf registration, we may sell the securities described in
this prospectus in one or more offerings up to a total dollar amount of
$2,500,000,000. We provide information to you about these securities in three
documents that progressively provide more detail:
1. This prospectus, which contains general information that may or may
not apply to each offering of securities.
2. The applicable prospectus supplement, which will contain more
specific information than this prospectus and may also add, update or
change information
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contained in this prospectus. To the extent information differs from
this prospectus, you should rely on the different information in the
applicable prospectus supplement.
3. The pricing supplement, if applicable, will provide final details
about a specific offering and the terms of the offered securities,
including their price. To the extent information differs from this
prospectus or the prospectus supplement, you should rely on the
different information in the pricing supplement.
You should read both this prospectus and any prospectus supplement or pricing
supplement together with any additional information described under the heading
"Where You Can Find More Information" to learn more about the Company and the
securities offered.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC, Washington, D.C., a registration statement
on Form S-3 under the Securities Act of 1933, as amended, with respect to the
securities that we are offering by this prospectus. This prospectus does not
contain all of the information set forth in the registration statement and the
exhibits and schedules thereto. Certain items are omitted in accordance with the
rules and regulations of the SEC. For further information with respect to the
Company and the securities offered hereby, reference is made to the registration
statement and the exhibits and any schedules filed with the registration
statement. Statements contained in this prospectus as to the contents of any
contract or other document referred to are not necessarily complete and in each
instance, if such contract or document is filed as an exhibit, reference is made
to the copy of such contract or other document filed as an exhibit to the
registration statement, each statement being qualified in all respects by such
reference.
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file,
including the registration statement, at the SEC's Public Reference Room at Room
1024, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the SEC's regional
offices located at Seven World Trade Center, Suite 1300, New York, New York
10048 and at Citicorp Center, Suite 1400, 500 West Madison Street, Chicago, IL
60661. For further information on the operation of the Public Reference Room,
you may call the SEC at 1-800-SEC-0330. Our SEC filings are also available to
the public over the Internet at the SEC's website at http://www.sec.gov. You may
also inspect our SEC filings at the New York Stock Exchange, the exchange on
which our common stock is listed, at 20 Broad Street, 7th Floor, New York, New
York 10005.
The SEC allows us to "incorporate by reference" the information in
documents that we file with them. This means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is an important part of this prospectus, and
information in documents that we file after the date of this prospectus and
before the termination of the offering contemplated by this prospectus will
automatically update and supersede information in this prospectus.
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We also incorporate by reference any future filings made with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934,
as amended, until we sell all of the securities offered by this prospectus.
We will provide without charge, upon written or oral request, to each
person to whom this prospectus is delivered, a copy of any or all of the
documents described above which have been or may be incorporated by reference in
this prospectus but not delivered with this prospectus. Such request should be
directed to:
Delphi Automotive Systems Corporation
Attn: Investor Relations
5725 Delphi Drive
Troy, Michigan 48098
Telephone Number: (248)813-2000
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This prospectus contains or incorporates by reference forward-looking
statements that have been made pursuant to the provisions of the Private
Securities Litigation Reform Act of 1995. These forward-looking statements are
not historical facts, but rather are based on our current expectations,
estimates and projections about Delphi's industry, our beliefs and assumptions.
Words such as "anticipates", "expects", "intends", "plans", "believes", "seeks",
"estimates" and similar expressions are intended to identify forward-looking
statements. These statements are not guarantees of future performance and are
subject to certain risks, uncertainties and other factors, some of which are
beyond our control, are difficult to predict and could cause actual results to
differ materially from those expressed or forecasted in the forward-looking
statements. Many of these risks and uncertainties will be described with
particularity in the applicable prospectus supplement. We caution you not to
place undue reliance on these forward-looking statements, which reflect our
management's view only as of the date of this prospectus or the prospectus
supplement containing such forward-looking statements. We are not obligated to
update these statements or publicly release the result of any revisions to them
to reflect events or circumstances after the date of this prospectus or the
applicable prospectus supplement, or to reflect the occurrence of unanticipated
events.
THE COMPANY
We are the world's largest and most diversified supplier of components,
integrated systems and modules to the automotive industry, with 1998 net sales
of $28.5 billion. We have become a leader in the global automotive parts
industry by capitalizing on the extensive experience we have gained as the
principal supplier of automotive parts to General Motors, the world's largest
manufacturer of automotive vehicles. We are primarily a "Tier 1" supplier, which
means that we generally provide our products directly to automotive vehicle
manufacturers. We also sell our products to the worldwide aftermarket for
replacement parts and to customers other than vehicle manufacturers.
Before the initial public offering of our common stock in February
1999, we were a wholly-owned subsidiary of General Motors. General Motors now
owns approximately 82.3%
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of our outstanding common stock and the public owns the rest. Several years ago,
we began to transform our Company from a North America-based, captive component
supplier to General Motors into a global supplier of components, integrated
systems and modules for a wide range of customers. We now sell our products to
every major manufacturer of light vehicles in the world. We have also
established an expansive global presence, with a network of manufacturing sites,
technical centers, sales offices and joint ventures located in every major
region of the world.
Through our experience with General Motors, we have developed a
sophisticated understanding of the design, engineering, manufacture and
operation of all aspects of the automotive vehicle. We have both extensive,
technical expertise in a broad range of product lines and strong systems
integration skills, which enable us to provide comprehensive, systems-based
solutions for our customers. We believe that we are one of the leading Tier 1
suppliers in each of our focused product areas. We operate our business along
three major product sectors which work closely together to coordinate our
product development and marketing efforts. Our three product sectors are:
Electronics & Mobile Communication, which includes our automotive electronics
and audio and communication systems; Safety, Thermal & Electrical Architecture,
which includes our interior, thermal and power and signal distribution products;
and Dynamics & Propulsion, which includes our energy and engine management,
chassis and steering products.
Our Company was incorporated in Delaware in late 1998 in preparation
for our initial public offering and for the separation of our business from
General Motors effective as of January 1, 1999, when we acquired the assets and
assumed the liabilities of the business of the Delphi Automotive Systems
business sector of General Motors.
General Motors has announced that it currently plans to complete its
divestiture of our Company later in 1999 by distributing all of its shares of
our common stock to the holders of General Motors' $1-2/3 common stock. General
Motors currently expects to accomplish this distribution through a split-off
(such as an exchange offer by General Motors in which holders of General Motors'
$1-2/3 common stock would be invited to tender shares of that stock to General
Motors in exchange for the 465 million shares of our common stock held by
General Motors), a spin-off or some combination of both transactions. General
Motors has sole discretion to determine the timing, structure and terms of the
distribution. We have agreed to cooperate with General Motors in all respects to
complete the divestiture because we believe that our complete separation from
General Motors will enhance our ability to pursue our business strategy. General
Motors is not, however, obligated to complete the divestiture and we cannot
assure you as to whether or when it will occur.
RISK FACTORS
You should carefully consider the specific risks set forth under the
caption "Risk Factors" in the applicable prospectus supplement before making an
investment decision. The risks and uncertainties described in the applicable
prospectus supplement are not the only ones facing our Company. Additional risks
and uncertainties not currently known to us or that we currently think are
immaterial may also impact our business operations.
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USE OF PROCEEDS
Unless we otherwise state in the applicable prospectus supplement, we
will use the net proceeds from the sale of the securities to repay portions of
the indebtedness outstanding under our revolving credit facilities or for other
general corporate purposes.
RATIO OF EARNINGS TO FIXED CHARGES
Our ratios of earnings to fixed charges were 6.4, 6.8, 4.3 and 1.7 for
the years ended December 31, 1994, 1995, 1996 and 1997, respectively.
Fixed charges exceeded earnings by $320 million for the year
ended December 31, 1998, resulting in a ratio of less than one.
Our earnings available for fixed charges for the years ended December
31, 1998, 1997 and 1996 were impacted by a number of special items which
management views as non-recurring in nature. The special items included charges
associated with our evaluation of the competitiveness of our business,
divestitures and plant closing charges as well as work stoppages at certain GM
and Delphi locations. Excluding the impact of these special items, our ratio
of earnings to fixed charges would have been 4.6, 6.3 and 7.0 for the years
ended December 31, 1998, 1997 and 1996, respectively. For more information on
special items and work stoppages, see "Management's Discussion and Analysis of
Financial Condition and Results of Operations-Results of Operations-Special
Items and Work Stoppages" and Note 3 to our consolidated financial statements
included in our 1998 Annual Report on Form 10-K incorporated herein by
reference.
Our ratio of earnings to fixed charges for each of the periods
indicated has been computed by dividing earnings before income taxes and fixed
charges by the fixed charges. Earnings have been adjusted to exclude equity
earnings of non-consolidated affiliates and include cash distributions received
from non-consolidated affiliates. This ratio includes the earnings and fixed
charges of the Company and its consolidated subsidiaries. Fixed charges
primarily include interest expense and amortization of debt expense.
DESCRIPTION OF DEBT SECURITIES
We describe in this section the general terms that will apply to any
particular series of debt securities that the Company may offer in the future.
When the Company issues a particular series, we will describe in the prospectus
supplement that relates to the series (i) the specific terms of the debt
securities and (ii) the extent to which the general terms described in this
section apply to the debt securities of that series.
The Company expects to issue the debt securities under an Indenture
dated as of , 1999 with The First National Bank of Chicago as
Trustee, which is included as an exhibit to the registration statement of which
this prospectus forms a part. In the discussion that follows, we summarize
particular provisions of the Indenture and include the relevant section numbers
of the Indenture in parentheses. Our discussion of Indenture provisions is not
complete; you should read the Indenture for a more complete understanding of the
provisions we describe.
The aggregate principal amount of debt securities that the Company may
issue under the Indenture is unlimited. (Section 2.01)
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GENERAL
Each prospectus supplement relating to a particular series of debt
securities that the Company offers will describe the specific terms of the
series of debt securities. Those specific terms will include some or all of the
following:
(i) the designation of the debt securities;
(ii) the authorized denominations if other than $1000 (or integrals
of $1000) for registered debt securities and if other than
$5000 for unregistered securities, and any limit on the
aggregate principal amount of the debt securities;
(iii) the percentage of their principal amount at which the debt
securities are issued;
(iv) the maturity date or dates of the debt securities (or the
manner of determining the maturity date);
(v) the annual interest rate or rates, if any, which may be fixed
or variable; and the manner of calculating any variable
interest rate;
(vi) the date or dates from which interest, if any, will accrue (or
the method of determining such date or dates), and the
interest payment dates and their associated record dates;
(vii) whether the Company may redeem the debt securities and, if so,
the redemption date or dates, redemption price or prices, and
other applicable terms of redemption;
(viii) any mandatory or optional sinking fund or analogous
provisions;
(ix) provisions for the defeasance of the debt securities;
(x) the form in which we will issue debt securities (registered or
bearer), any restrictions on the exchange of one form for
another and on the offer, sale and delivery of debt securities
in either form;
(xi) whether and under what circumstances the Company will pay
additional amounts on debt securities held by a person who is
not a United States person (as defined in the prospectus
supplement) in respect of specified taxes, assessments or
other governmental charges withheld or deducted; and if so,
whether the Company has the option to redeem the affected debt
securities rather than pay such additional amounts;
(xii) if other than U.S. dollars, the currency or currencies for
which the debt securities may be purchased and the currency in
which the principal of, premium, if any, and interest, if any,
on the debt securities is payable;
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(xiii) any exchanges on which the debt securities are listed;
(xiv) whether the debt securities are to be issued in book-entry
form and, if so, the identity of the depositary for such
book-entry debt securities;
(xv) the place or places where the principal of, premium, if any,
interest, if any, and certain additional amounts required in
respect of taxes owed to holders of the debt securities, if
any, on the debt securities is payable;
(xvi) if the amount of principal of and interest on the debt
securities may be determined with reference to an index based
on a currency other than that in which the debt securities are
denominated, the manner of determining such amounts;
(xvii) the portion of the principal amount (if other than the
principal amount) of the debt securities payable upon
declaration of acceleration of their maturity date;
(xviii) the form and terms of any certificates, documents or
conditions required for the issuance of debt securities in
definitive form;
(xix) any trustees, deposititories, authenticating or paying agents,
transfer agents, registrars or any other agents with respect
to the debt securities;
(xx) any other specific terms of the debt securities, including any
additional covenants and any terms that may be required or
advisable under applicable laws or regulations. (Section 2.01)
The debt securities will be unsecured and will rank equally and ratably
with all other unsecured and unsubordinated indebtedness of the Company (other
than obligations preferred by mandatory provisions of law).
Unless we say otherwise in a prospectus supplement, holders of debt
securities may present them for transfer (unless the debt securities are issued
in book-entry form) or payment at the office of the Trustee, One First National
Plaza, Suite 0126, Chicago, Illinois 60670-0126. The Company may, however, pay
the interest on registered debt securities by mailing checks to the holders of
those debt securities at the addresses listed in the Company's register or, for
holders of at least U.S. $10,000,000 aggregate principal amount of debt
securities, by wire transfer of immediately available funds. (Sections 4.01 and
4.02) The Company will not levy a service charge for any transfer or exchange of
registered debt securities, but may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection with a transfer or
exchange. (Section 2.05)
Holders of debt securities in bearer form (together with any coupons
attached to them) must physically present such debt securities or coupons for
payment, subject to any applicable laws and regulations, at one of the paying
agencies that the Company maintains in a city or cities located outside the
United States. (Sections 4.01 and 4.02) Debt securities in bearer form
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(except for temporary bearer securities) and any coupons attached to them will
be transferable by delivery. (Section 2.05)
The Company may issue some of the debt securities as discounted debt
securities (bearing no interest or interest at a rate that is below market at
the time of issuance), which are sold at a substantial discount below their
stated principal amount. When an event of default occurs with respect to a
particular series of debt securities, the amount that the holders of such series
may declare to be immediately due and payable will be less than the principal
amount in the case of discounted debt securities. (Section 6.01)
If a prospectus supplement specifies that the debt securities will have
a redemption option, the "Option to Elect Repurchase" will constitute an issuer
tender offer under the Exchange Act of 1934, as amended. The Company will comply
with all issuer tender offer rules and regulations under the Securities and
Exchange Act of 1934, as amended, if such redemption option is elected,
including making any required filings with the Securities and Exchange
Commission and furnishing certain information to the holders of the debt
securities.
BOOK-ENTRY SECURITIES - DELIVERY AND FORM
Some or all of the debt securities of a series may be issued in the
form of one or more global securities, each of which will have an aggregate
principal amount equal to the aggregate principal amount of the debt securities
that it represents. Each global security will be deposited with a depositary (to
be specified in the applicable prospectus supplement) or its nominee, and, if in
registered form, registered in the name of the depositary or the depositary's
nominee. Each depositary for a global security in registered form must be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, and any other applicable statute or regulation. (Section 2.03)
The beneficial owner of a debt security represented by a global
security in bearer form may exchange its interest in the global security for a
debt security or debt securities in either bearer or registered form of any
authorized denomination, subject to the rules of the depositary. (Section 2.10)
We will describe the specific terms of the depositary arrangement with
respect to a series of debt securities in the applicable prospectus supplement.
CERTAIN COVENANTS
In this section we describe the principal covenants that will apply to
the debt securities unless otherwise indicated in the applicable prospectus
supplement. We make use of several defined terms; the associated definitions are
located at the end of this section.
Limitation on Liens. The Indenture provides that the Company will not, and will
not permit any of its Manufacturing Subsidiaries to, issue or assume
any Debt secured by a Mortgage upon any Domestic Manufacturing Property
of the Company or of any Manufacturing Subsidiary, or upon any shares
of stock or indebtedness of any Manufacturing Subsidiary
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(whether that Domestic Manufacturing Property, those shares of stock or
that indebtedness are then currently owned or later acquired) without
providing at the same time that the Company issues or assumes any such
Debt that the debt securities (together with any other indebtedness of
the Company or the Manufacturing Subsidiary ranking equally with the
debt securities then existing or later created) will be secured equally
and ratably with such Debt.
The foregoing restriction does not, however, apply if the aggregate amount of
Debt that the Company or any Manufacturing Subsidiary issues or assumes and so
secures by Mortgages, together with (i) all other Debt of the Company and its
Manufacturing Subsidiaries which (if originally issued or assumed at such time)
would otherwise be subject to the foregoing restrictions, but not including Debt
permitted to be secured under clauses (i) through (v) of the immediately
following paragraph and not including Permitted Receivables Financings, and (ii)
all Attributable Debt of the Company and its Manufacturing Subsidiaries in
respect of sale and lease-back transactions, does not at the time exceed 15% of
Consolidated Net Tangible Assets as shown on the audited consolidated financial
statements for the most recently completed fiscal year.
In addition, the covenant described in the first paragraph above does
not apply to:
(i) Mortgages on property, shares of stock or indebtedness of
any corporation or other entity existing at the time (a) that
the corporation or other entity becomes a Manufacturing
Subsidiary or (b) of a sale, lease or other disposition of all
or substantially all of the properties of the corporation or
other entity to the Company or a Manufacturing Subsidiary;
(ii) Mortgages on property that exist at the time the Company
or a Manufacturing Subsidiary acquires the property; or
Mortgages to secure (a) the payment of all or part of the
purchase price of such property when the Company or a
Manufacturing Subsidiary acquires it, (b) any Debt incurred
prior to, at the time of, or within 180 days after, the later
of the date of acquisition of such property and the date such
property is placed in service, for the purpose of financing
all or any part of its purchase price, or (c) any Debt
incurred for the purpose of financing the Company's or a
Manufacturing Subsidiary's cost of improvements to such
acquired property;
(iii) Mortgages securing a Manufacturing Subsidiary's Debt to
the Company or to another Subsidiary;
(iv) Mortgages on property of the Company or a Manufacturing
Subsidiary in favor of:
(a) the United States of America or any State,
(b) any department, agency or instrumentality or
political subdivision of the United States of America or
any State, or
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(c) any other country, or any political subdivision of
any other country,
in connection with financing arrangements between the Company
or a Manufacturing Subsidiary and any of the foregoing
governmental bodies or agencies, to the extent that Mortgages
are required by the governmental programs under which those
financing arrangements are made, to secure partial, progress,
advance or other payments under any contract or statute or to
secure any indebtedness incurred for the purpose of financing
all or part of the purchase price or the cost of construction
of the property subject to such Mortgages;
(v) Any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of
any Mortgage referred to in the foregoing clauses (i) to (iv),
as long as (a) the principal amount of Debt secured by any
such Mortgage does not exceed the principal amount of Debt so
secured at the time of such extension, renewal or replacement
and (b) the extension, renewal or replacement is limited to
all or a part of the property (including improvements) that
secured the Mortgage being extended, renewed or replaced.
(Section 4.06)
Limitation on Sale and Lease-Back. The Indenture provides that the Company will
not, and will not permit any Manufacturing Subsidiary to, enter into
any arrangement with any person in which the Company or a Manufacturing
Subsidiary leases from such person any Domestic Manufacturing Property
that (i) the Company or the Manufacturing Subsidiary owns on the date
that the debt securities are originally issued and (ii) the Company or
the Manufacturing Subsidiary has sold or will sell to such person
(except for temporary leases having a maximum term of three years and
except for leases between the Company and a Manufacturing Subsidiary or
between Manufacturing Subsidiaries), unless either:
(i) The Company or the Manufacturing Subsidiary could,
under the covenant on limitation on liens described above,
issue, assume, extend, renew or replace Debt secured by a
Mortgage on the Domestic Manufacturing Property equal in
amount to the Attributable Debt in respect of such sale and
lease-back arrangement without equally and ratably securing
the debt securities; however, on and after the date that the
sale and lease-back arrangement becomes effective, the
Attributable Debt in respect of such sale and lease-back
arrangement would be deemed for all purposes under the
covenant on limitation on liens described above and the
covenant on limitation on sale and lease-back to be Debt
subject to the provisions of the covenant on limitation on
liens described above (which provisions include the exceptions
set forth in clauses (i) through (v) of this description of
such covenant), or
(ii) Within 180 days of the effective date of the sale and
lease-back arrangement, the Company applies a cash amount
equal to the Attributable Debt in respect of the arrangement
to the retirement (other than any mandatory retirement or by
way of payment at maturity) of Debt of the Company or any
Manufacturing Subsidiary (other than Debt owned by the Company
or any
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<PAGE> 13
Manufacturing Subsidiary) that by its terms matures at, or is
extendible or renewable at the borrower's option to a date
more than twelve months after the date of the creation of such
Debt. (Section 4.07)
Limitation on Consolidation, Merger, Sale or Conveyance. The Indenture provides
that the Company will not merge or consolidate with any other entity,
and will not sell or convey all or substantially all of its assets to
any person or entity, unless:
(i) Either the Company is the surviving corporation, or if not,
the successor entity is organized under the laws of the United States
or any State and expressly assumes, by executing a supplemental
indenture, (a) the obligation to pay the principal of, premium, if any,
interest, if any, and any other additional amounts, on all the debt
securities and any coupons and (b) the performance of all of the
Company's covenants and the satisfaction of all the conditions to be
satisfied by the Company under the Indenture;
(ii) Immediately after the merger, consolidation, sale or
conveyance is effective, no event of default under the Indenture will
have occurred or be continuing; and
(iii) The Company delivers to the Trustee under the Indenture a
certificate and legal opinion each stating that the merger,
consolidation, sale or conveyance, any supplemental indenture, and any
assumption by the successor entity of the Company's obligations
described above, complies with the requirements set forth in Article
Eleven of the Indenture regarding the Company's ability to carry out a
merger, consolidation, sale or conveyance of assets. (Section 11.01)
Definitions Applicable to Covenants. The following definitions will apply to the
covenants summarized above:
(i) "Attributable Debt" means, at the time of determination as to any
lease, the present value (discounted at the actual rate, if stated, or,
if no rate is stated, the implicit rate of interest of such lease
transaction as determined by the chairman, president, any vice
chairman, any vice president, the treasurer or any assistant treasurer
of the Company), calculated using the interval of scheduled rental
payments under such lease, of the obligation of the lessee for net
rental payments during the remaining term of such lease (excluding any
subsequent renewal or other extension options held by the lessee). The
term "net rental payments" means, with respect to any lease for any
period, the sum of the rental and other payments required to be paid in
such period by the lessee thereunder, but not including, however, any
amounts required to be paid by such lessee (whether or not designated
as rental or additional rental) on account of maintenance and repairs,
insurance, taxes, assessments, water rates, indemnities or similar
charges required to be paid by such lessee thereunder or any amounts
required to be paid by such lessee thereunder contingent upon the
amount of sales, earnings or profits or of maintenance and repairs,
insurance, taxes, assessments, water rates, indemnities or similar
charges; provided, however, that, in the case of any lease which is
terminable by the lessee upon the payment of a penalty in an amount
which is less than the total discounted net rental payments required to
be paid from the later of the first date upon which such lease may
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<PAGE> 14
be so terminated and the date of the determination of net rental
payments, "net rental payments" shall include the then-current amount
of such penalty from the later of such two dates, and shall exclude the
rental payments relating to the remaining period of the lease
commencing with the later of such two dates.
(ii) "Consolidated Net Tangible Assets" means, at any date, all amounts
that would, in conformity with GAAP, be set forth opposite the caption
"total assets" (or any like caption) on a consolidated balance sheet of
the Company and its consolidated Subsidiaries less (i) all current
liabilities and (ii) goodwill, trade names, patents, unamortized debt
discount, organization expenses and other like intangibles of the
Company and its consolidated Subsidiaries.
(iii) "Debt" means notes, bonds, debentures or other similar evidences
of indebtedness for money borrowed.
(iv) "Domestic Manufacturing Property" means any manufacturing plant or
facility owned by the Company or any Manufacturing Subsidiary which is
located within the continental United States of America and, in the
opinion of the Board of Directors, is of material importance to the
total business conducted by the Company and its consolidated affiliates
as an entity.
(v) "GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time set forth in the
opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and the statements
and pronouncements of the Financial Accounting Standards Board, or in
such other statements by a successor entity as may be in general use by
significant segments of the accounting profession, which are applicable
to the circumstances as of the date of determination.
(vi) "Manufacturing Subsidiary" means any Subsidiary (A) substantially
all the property of which is located within the continental United
States of America, (B) which owns a Domestic Manufacturing Property and
(C) in which the Company's investment, direct or indirect and whether
in the form of equity, debt, advances or otherwise, is in excess of
$1 billion as shown on the books of the Company as of the end of the
fiscal year immediately preceding the date of determination; provided,
however, that "Manufacturing Subsidiary" shall not include any
Subsidiary that is principally engaged in leasing or in financing
installment receivables or otherwise providing financial or insurance
services to the Company or others or that is principally engaged in
financing the Company's operations outside the continental United
States of America.
(vii) "Mortgage" means any mortgage, pledge, lien, security interest,
conditional sale or other title retention agreement or other similar
encumbrance.
(viii) "Non-Recourse Debt" means all Debt which, in accordance with
GAAP, is not required to be recognized on a consolidated balance sheet
of the Company as a liability.
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<PAGE> 15
(ix) "Permitted Receivables Financings" means, at any date of
determination, the aggregate amount of any Non-Recourse Debt
outstanding on such date relating to securitizations or other similar
off-balance sheet financings of accounts receivable of the Company or
any of its Subsidiaries.
(x) "Subsidiary" means any corporation or other entity of which at
least a majority of the outstanding stock or other beneficial interests
having by the terms thereof ordinary voting power to elect a majority
of the board of directors or other governing body of such corporation
or other entity (irrespective of whether or not at the time stock or
other beneficial interests of any other class or classes of such
corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by the Company, or
by one or more Subsidiaries, or by the Company and one or more
Subsidiaries. (Section 4.07)
DEFEASANCE
If the terms of a particular series of debt securities provide for
defeasance of those debt securities, the Company may, at its option, (i)
discharge its obligations under the Indenture with respect to, and the entire
indebtedness on all the outstanding debt securities of, that series or (ii) not
comply with any term, provision, condition or covenant contained in the
Indenture with respect to that series, in each case by:
(i) depositing with the Trustee funds, or obligations issued or
guaranteed by the United States of America, sufficient to pay and discharge the
entire indebtedness on all outstanding debt securities of the series, or
fulfilling other terms and conditions of the satisfaction and discharge of the
debt securities of the series;
(ii) paying all other sums payable with respect to the outstanding debt
securities of the series;
(iii) delivering to the Trustee a legal opinion confirming that the
holders of the outstanding debt securities and any related coupons will not
recognize income, gain or loss for Federal income tax purposes as a result of
the defeasance of their debt securities; and
(iv) delivering to the Trustee an officer's certificate and legal
opinion each confirming that the Company has complied with all conditions
relating to defeasance of the debt securities contained in the Indenture.
(Section 12.02)
MODIFICATION OF THE INDENTURE
The Indenture provides that the Company and the Trustee may enter into
supplemental indentures without the consent of the holders of the debt
securities to (a) evidence the assumption by a successor corporation of the
obligations of the Company, (b) add covenants for the protection of the holders
of the debt securities, (c) add or change any of the provisions of the Indenture
to permit or facilitate the issuance of debt securities of any series in bearer
form and to provide for the exchange of debt securities in bearer form with
registered debt securities, (d) cure
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<PAGE> 16
any ambiguity or correct any inconsistency in the Indenture or in a supplemental
indenture, (e) transfer, assign, mortgage or pledge any property to or with the
Trustee, (f) establish the form or terms of debt securities of any series as
permitted by the terms of the Indenture, (g) evidence the acceptance of
appointment by a successor trustee and (h) change or eliminate provisions of the
Indenture where the changes or eliminations do not apply to any debt security
outstanding and become effective only when there is no debt security outstanding
of a series created before the execution of the supplemental indenture that is
entitled to the benefit of the provision being changed or eliminated. (Section
10.01)
The Indenture also provides that the Company and the Trustee may enter
into a supplemental indenture to modify the Indenture, any supplemental
indenture or the rights of the holders of the debt securities issued under
either such Indenture or supplemental indenture, with the consent of the holders
of not less than a majority in principal amount of the debt securities of all
series at the time outstanding that are affected by that modification (voting as
one class) if the modification does not:
(i) (a) change the fixed maturity of any debt securities, (b) reduce
their principal amount or premium, if any, (c) reduce the rate or
extend the time of payment of interest or any additional amounts
payable on the debt securities, (d) reduce the amount due and payable
upon acceleration of the maturity of the debt securities or the amount
provable in bankruptcy or (e) make the principal of, or any interest,
premium or additional amounts on, any debt security payable in a coin
or currency different from that provided in the debt security,
(ii) impair the right to initiate suit for the enforcement of any such
payment on or after the stated maturity of the debt securities, or
(iii) reduce the requirement, stated above, for the consent of the
holders of the debt securities to any modification described above, or
the percentage required for the consent of the holders to waive
defaults, without the consent of the holder of each debt security so
affected. (Section 10.02)
EVENTS OF DEFAULT
An event of default with respect to any series of debt securities is
defined in the Indenture as: (a) default in payment of any principal or premium,
if any, on the series; (b) default for 30 days in payment of any interest or
additional amounts due with respect to the series; (c) default for 90 days after
notice in performance of any other covenant or agreement applicable to the debt
securities or contained in the Indenture; (d) default by the Company or any
Significant Subsidiary in any payment of $25,000,000 or more of principal of or
interest on any Debt or in the payment of $25,000,000 or more on account of any
guarantee in respect of Debt, beyond any period of grace that may be provided in
the instrument or agreement under which such Debt or guarantee was created (for
these purposes, the term "Significant Subsidiary" is defined as any Subsidiary
of the Company that, at any time, has at least 5% of the consolidated revenues
of the Company and its Subsidiaries at such time as reflected in the most recent
annual audited consolidated financial statements of the Company; the term
"Subsidiary" is defined as in our
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<PAGE> 17
description of the covenants under the Indenture); or (e) certain events of
bankruptcy, insolvency or reorganization. (Section 6.01)
If an event of default under clause (a), (b), (c) or (d) above occurs
with respect to any series, the Trustee or the holders of at least 25% in
aggregate principal amount of all debt securities then outstanding affected by
the event of default may declare the principal (or, in the case of discounted
debt securities, the amount specified in their terms) of all debt securities of
the affected series to be due and payable. (Section 6.01)
If an event of default under clause (e) above occurs, the Trustee or
the holders of at least 25% in aggregate principal amount of all the debt
securities then outstanding (voting as one class) may declare the principal (or,
in the case of discounted debt securities, the amount specified in their terms)
of all outstanding debt securities not already due and payable to be due and
payable. (Section 6.01)
If the principal amount of debt securities has been declared due and
payable, the holders of a majority in aggregate principal amount of the
outstanding debt securities of the applicable series (or of all the outstanding
debt securities) may waive any event of default with respect to that series (or
with respect to all outstanding debt securities) if:
(i) The Company deposits with the Trustee all required payments on the
debt securities, plus certain fees, expenses disbursements and advances of the
Trustee and
(ii) all defaults under the Indenture have been remedied. (Section
6.01)
The holders of a majority in aggregate principal amount of the debt
securities of a particular series may also waive any default with respect to
that series and its consequences, except a default:
(i) in the payment of principal of, or any premium, interest or
additional amounts on, any debt securities of that series or
(ii) in respect of a covenant or provision in the Indenture that may
not be modified without the consent of the holders of each outstanding debt
security that would be affected by the modification. (Section 6.06)
The Indenture provides that the Trustee may withhold notice of any
default to the securityholders (except for default in the payment of principal
or any premium, interest or additional amounts) if it considers it in the
interests of the securityholders to do so. (Section 6.07)
Subject to the provisions of the Indenture relating to the duties of
the Trustee when an event of default occurs, the Trustee is not obligated to
exercise any of its rights or powers under the Indenture at the request, order
or direction of any of the securityholders, unless those securityholders have
offered to the Trustee reasonable indemnity. (Sections 7.01 and 7.02)
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<PAGE> 18
Subject to such provisions for the indemnification of the Trustee and
to certain other limitations, the holders of a majority in aggregate principal
amount of the debt securities of all series affected by the occurrence of an
event of default (voting as one class) at the time outstanding may 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. (Section
6.06)
CONCERNING THE TRUSTEE
The First National Bank of Chicago is the Trustee under the Indenture.
The First National Bank of Chicago acts as depositary for funds of, makes loans
to, acts as trustee and performs certain other services for, the Company and
certain of its subsidiaries and affiliates in the normal course of its business.
PLAN OF DISTRIBUTION
We may sell the securities from time to time: (i) directly to
purchasers, (ii) through agents, (iii) through underwriters or dealers or (iv)
through a combination of these methods.
GENERAL
Underwriters, dealers, agents and remarketing firms that participate in
the distribution of the offered securities may be "underwriters" as defined in
the Securities Act of 1933, as amended. Any discounts or commissions they
receive from us and any profits they receive on the resale of the offered
securities may be treated as underwriting discounts and commissions under the
Securities Act of 1933, as amended. We will identify any underwriters, agents or
dealers and describe their commissions, fees or discounts in the applicable
prospectus supplement or pricing supplement.
AGENTS
We may designate agents to sell the securities. The agents will agree
to use their best efforts to solicit purchases for the period of their
appointment.
UNDERWRITERS
If underwriters are used in a sale, they will acquire the offered
securities for their own account. The underwriters may resell the securities in
one or more transactions, including negotiated transactions. These sales will be
made at a fixed public offering price or at varying prices determined at the
time of the sale. We may offer the securities to the public through an
underwriting syndicate or through a single underwriter.
Unless the applicable prospectus supplement or pricing supplement
states otherwise, the obligations of the underwriters to purchase the offered
securities will be subject to certain conditions contained in an underwriting
agreement that the Company and the underwriters will enter into. The
underwriters will be obligated to purchase all of the securities of the series
offered if any of the securities are purchased, unless the applicable prospectus
supplement or pricing
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<PAGE> 19
supplement says otherwise. Any initial public offering price and any discounts
or concessions allowed, re-allowed or paid to dealers may be changed from time
to time.
DEALERS
We may sell the offered securities to dealers as principals, who may
then resell such securities to the public either at varying prices determined by
such dealers or at a fixed offering price agreed to with the Company.
REMARKETING FIRMS
We may sell securities to one or more remarketing firms, acting as
principals for their own accounts or as agents for the Company, who will
remarket the securities upon purchasing them in accordance with a redemption or
repayment pursuant to the terms of such securities.
DIRECT SALES
We may choose to sell the offered securities directly. In this case, no
underwriters or agents would be involved.
INSTITUTIONAL PURCHASERS
We may authorize agents, dealers or underwriters to solicit certain
institutional investors to purchase offered securities on a delayed delivery
basis pursuant to delayed delivery contracts providing for payment and delivery
on a specified future date. The applicable prospectus supplement or pricing
supplement will provide the details of any such arrangement, including the
offering price and commissions payable on the solicitations.
We will enter into such delayed delivery contracts only with
institutional purchasers that we approve. Such institutions may include
commercial and savings banks, insurance companies, pension funds, investment
companies and educational and charitable institutions.
INDEMNIFICATION
We may have agreements with agents, underwriters, dealers and
remarketing firms to indemnify them against certain civil liabilities, including
liabilities under the Securities Act of 1933, as amended. Agents, underwriters,
dealers and remarketing firms, and their affiliates, may engage in transactions
with, or perform services for, us in the ordinary course of business. This
includes commercial banking and investment banking transactions.
MARKET MAKING, STABILIZATION AND OTHER TRANSACTIONS
Each series of offered debt securities will be a new issue and will
have no established trading market. We may elect to list any series of offered
debt securities on an exchange. Any underwriters that we use in the sale of
offered securities may make a market in such securities, but
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<PAGE> 20
may discontinue such market making at any time without notice. Therefore, we
cannot assure that the securities will have a liquid trading market.
Any underwriter may engage in stabilizing transactions, syndicate
covering transactions and penalty bids in accordance with Rule 104 under the
Securities Exchange Act of 1934, as amended. Stabilizing transactions permit
bids to purchase the underlying security so long as the stabilizing bids do not
exceed a specified maximum. Syndicate covering transactions involve purchases of
the securities in the open market after the distribution has been completed in
order to cover syndicate short positions. Penalty bids permit the underwriters
to reclaim a selling concession from a syndicate member when the securities
originally sold by such syndicate member are purchased in a syndicate covering
transaction to cover syndicate short positions. Such stabilizing transactions,
syndicate covering transactions and penalty bids may cause the price of the
securities to be higher than it would otherwise be in the absence of such
transactions. The underwriters may, if they commence these transaction,
discontinue them at any time.
EXPERTS
The financial statements incorporated by reference in this prospectus
from the Company's Annual Report on Form 10-K have been audited by Deloitte &
Touche LLP, independent auditors, as stated in their report incorporated herein,
and have been so incorporated in reliance upon the report of that firm given
upon their authority as experts in accounting and auditing.
LEGAL OPINIONS
Unless we indicate otherwise in the applicable prospectus supplement,
Drinker Biddle & Reath LLP, Philadelphia, Pennsylvania, will issue an opinion
about the legality of the securities that we are offering in this prospectus. We
will also provide in the applicable prospectus supplement the name of counsel
that will issue an opinion as to certain legal matters for any underwriters,
dealers or agents.
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<PAGE> 21
================================================================================
Until ______, 1999, all dealers that effect transactions in these securities,
whether or not participating in this Offering, may be required to deliver a
prospectus. This is in addition to the dealers' obligation to deliver a
prospectus when acting as underwriters and with respect to their unsold
allotments or subscriptions.
---------------------------
================================================================================
$2,500,000,000
Debt Securities
DELPHI AUTOMOTIVE
SYSTEMS CORPORATION
---------------------------
PROSPECTUS
March 3, 1999
================================================================================
<PAGE> 22
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated expenses (other than
underwriting discounts and commissions) to be incurred in connection with the
offering described in this Registration Statement:
Securities and Exchange Commission registration fee...............$695,000
Fees and expenses of Trustee ............................................*
Printing and Engraving Expenses..........................................*
Accounting fees and expenses.............................................*
Legal fees and expenses..................................................*
Blue Sky Fees and expenses...............................................*
Rating Agencies' fees....................................................*
Miscellaneous expenses...................................................*
Total.................................................................$ *
==========
* To be filed by amendment.
- ---------------
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
GENERAL CORPORATION LAW
The Company is incorporated under the laws of the State of Delaware.
Section 145 ("Section 145") of the General Corporation Law of the State of
Delaware, as the same exists or may hereafter be amended (the "General
Corporation Law"), inter alia, provides that a Delaware corporation may
indemnify any persons who were, are or are threatened to be made, parties to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of such corporation), by reason of the fact that such person is or was an
officer, director, employee or agent of such corporation, or is or was serving
at the request of such corporation as a director, officer, employee or agent of
another corporation or enterprise. The indemnity may include expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonable incurred by such person in connection with such action, suit or
proceeding, provided such person acted in good faith and in a manner he
reasonably believed to be in or not opposed to the corporation's best interests
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe that his conduct was illegal. A Delaware corporation may indemnify
any persons who are, were or threatened to be made, a party to any threatened,
pending or completed action or suit by or in the right of the corporation by
reasons of the fact that such person was a director, officer, employee or agent
of such corporation, or is or was serving at the request of such corporation as
a director, officer, employee or agent of another corporation or
<PAGE> 23
enterprise. The indemnity may include expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit, provided such person acted in good faith
and in a manner he reasonably believed to be in or not opposed to the
corporation's best interests, provided that no indemnification is permitted
without judicial approval if the officer, director, employee or agent is
adjudged to be liable to the corporation. Where an officer, director, employee
or agent is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him against the expenses which
such officer or director has actually and reasonably incurred.
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
against any liability asserted against him and incurred by him in any such
capacity, arising out of his status as such, whether or not the corporation
would otherwise have the power to indemnify him under Section 145.
CERTIFICATE OF INCORPORATION
The Company's Restated Certificate of Incorporation and Bylaws provide
for the indemnification of officers and directors to the fullest extent
permitted by the General Corporation Law.
All of the Company's directors and officers will be covered by
insurance policies maintained by the Company against certain liabilities for
actions taken in their capacities as such, including liabilities under the
Securities Act of 1933, as amended.
ITEM 16. EXHIBITS
*1 -- Form of Debt Security Underwriting Agreement (including
Form of Delayed
Delivery Contract)
*4.1 -- Form of Indenture between the Company and The First
National Bank of Chicago, Trustee
*4.2 -- Form of Global Debt Security
5 -- Form of Opinion of Drinker Biddle & Reath LLP as to the
legality of the securities
12 -- Computation of Ratio of Earnings to Fixed Charges
**23.1 -- Independent Auditors' Consent
23.2 -- Consent of Counsel (included in Exhibit 5)
24 -- Powers of Attorney (on signature page hereof)
25 -- Form T-1 Statement of Eligibility and Qualification under
the
Trust Indenture Act of 1939 of The First National Bank of
Chicago
* The Debt Security Underwriting Agreement, Indenture, Global Debt Security
and supplementary opinion of Drinker Biddle & Reath LLP will be filed as an
amendment or an exhibit to a report on Form 8-K and incorporated herein by
reference in connection with an offering of the offered securities.
<PAGE> 24
** To be filed by amendment.
ITEM 17. UNDERTAKINGS
(a) Rule 415 Offering. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933, as amended;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to rule 424(b), if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration
statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement;
provided, however, that the undertakings set forth in paragraphs (i)
and (ii) above do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934, as amended, that
are incorporated by reference in the registration statement;
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, as amended, 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.
(b) Filings Incorporating Subsequent Exchange Act Documents by Reference. The
undersigned registrant hereby further undertakes that, for purposes of
determining any liability
<PAGE> 25
under the Securities Act of 1933, as amended, each filing of the registrant's
annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934, as amended, (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934, as amended) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(h) Request for Acceleration of Effective Date. Insofar as indemnification for
liabilities arising under the Securities Act of 1933, as amended, may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the provisions discussed in Item 15 above, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933, as amended, 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, as amended, and will be governed by the final
adjudication of such issue.
(i) Rule 430A. The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, as amended, the information omitted from the
form of prospectus filed as part of this registration statement in
reliance upon Rule 430A and contained in a form of prospectus filed by
the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act of 1933, as amended, shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities of 1933, as amended, each post-effective amendment that
contains a form of prospectus 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.
(j) Qualification of Trust Indentures Under the Trust Indenture Act of 1939 For
Delayed Offerings. The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the trustee to act
under subsection (a) of Section 310 of the Trust Indenture Act in accordance
with the rules and regulations prescribed by the Commission under Section
305(b)(2) of the Act.
<PAGE> 26
================================================================================
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the city of Troy, state of Michigan, on February 10, 1999.
DELPHI AUTOMOTIVE SYSTEMS CORPORATION
By /s/ J. T. Battenberg III
--------------------------------------------
J. T. Battenberg III, Chairman of the Board,
Chief Executive Officer and
President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints J.T. Battenberg III and Alan S. Dawes,
and each of them, his or her true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him or her and in his or her
name, place and stead in any and all capacities, to sign any or all amendments
and supplements to this Registration Statement on Form S-3 (including but not
limited to post-effective amendments and prospectus supplements) and any
subsequent Registration Statements to be filed pursuant to Rule 462(b) of the
Securities Act of 1933, as amended (or any successor thereto), for the purpose
of registering under the Securities Act and to file the same, with all exhibits
thereto, and other documents in connection therewith with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully and to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that each said attorney-in-fact and agent, or any of them, or
their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
registration statement has been signed on February 10, 1999 by the following
persons in the capacities indicated.
SIGNATURE TITLE
- --------- -----
/s/ J. T. Battenberg III Chairman of the Board,
- --------------------------------- Chief Executive Officer and President
J.T. Battenberg III (Principal Executive Officer)
/s/ Alan S. Dawes Chief Financial Officer and Vice
- --------------------------------- President (Principal Financial Officer)
Alan S. Dawes
/s/ Paul R. Free Chief Accounting Officer and Controller
- --------------------------------- (Principal Accounting Officer)
Paul R. Free
/s/ Thomas H. Wyman Director
- ---------------------------------
Thomas H. Wyman
/s/ John F. Smith, Jr. Director
- ---------------------------------
John F. Smith, Jr.
/s/ Harry J. Pearce Director
- ---------------------------------
Harry J. Pearce
/s/ J. Michael Losh Director
- ---------------------------------
J. Michael Losh
/s/ Susan A. McLaughlin Director
- ---------------------------------
Susan A. McLaughlin
/s/ Roger S. Penske Director
- ---------------------------------
Roger S. Penske
/s/ Oscar De Paula Bernardes Neto Director
- ---------------------------------
Oscar De Paula Bernardes Neto
/s/ Virgis W. Colbert Director
- ---------------------------------
Virgis W. Colbert
/s/ John D. Opie Director
- ---------------------------------
John D. Opie
<PAGE> 27
EXHIBIT INDEX
Exhibit Page No.
------- --------
*1 -- Form of Debt Security Underwriting Agreement 29
(including Form of Delayed Delivery Contract)
*4.1 -- Form of Indenture between the Company 46
and The First National Bank of Chicago, Trustee
*4.2 -- Form of Global Debt Security 112
5 -- Form of Opinion of Drinker Biddle & Reath LLP as to the 116
legality of the securities
12 -- Computation of Ratio of Earnings to Fixed Charges 118
**23.1 -- Independent Auditors' Consent
23.2 -- Consent of Counsel (included in Exhibit 5)
24 -- Powers of Attorney (on signature page hereof)
25 -- Form T-1 Statement of Eligibility and Qualification 119
under the
Trust Indenture Act of 1939 of The First National Bank of
Chicago
* The Debt Security Underwriting Agreement, Indenture, Global Debt Security and
supplementary opinion of Drinker Biddle & Reath LLP will be filed as an exhibit
or amendment to a report on Form 8-K and incorporated herein by reference in
connection with an offering of the offered securities.
** To be filed by amendment.
<PAGE> 1
EXHIBIT 1
Delphi Automotive Systems Corporation
Form of Underwriting Agreement
Dated , 1999
From time to time, Delphi Automotive Systems Corporation (the
"Company"), a Delaware corporation, may enter into one or more underwriting
agreements that provide for the sale of designated securities to the several
underwriters named therein. The standard provisions set forth herein may be
incorporated by reference in any such underwriting agreement (an "Underwriting
Agreement"). The Underwriting Agreement, including the provisions incorporated
therein by reference, is herein referred to as this Agreement. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein as
therein defined.
I.
The Company proposes to issue from time to time debt securities (the
"Securities") to be issued pursuant to the provisions of the Indenture dated as
of , 1999 between the Company and The First National Bank of Chicago,
as Trustee (the "Indenture"). The Securities will have varying designations,
maturities, rates and times of payment of interest, selling prices and
redemption terms.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement including a prospectus relating to the
Securities and has filed with, or mailed for filing to, or proposes to file
with, the Commission a prospectus supplement specifically relating to the
Securities pursuant to Rule 424 under the Securities Act of 1933, as amended
(the "Securities Act"). The term "Registration Statement" means the registration
statement as amended to the date of the Underwriting Agreement. The term "Basic
Prospectus" means the prospectus included in the Registration Statement in the
form first used to confirm sales of the Securities. The term "Prospectus" means
the Basic Prospectus together with the prospectus supplement specifically
relating to the Securities in the form first used to confirm sales of the
Securities, as filed electronically with, or mailed for filing to, the
Commission pursuant to Rule 424. The term "Preliminary Prospectus" means a
preliminary prospectus supplement specifically relating to the Securities
together with the Basic Prospectus. If the Company has filed an abbreviated
registration statement pursuant to Rule 462(b) under the Securities Act (the
"Rule 462 Registration Statement"), then any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462 Registration
Statement. As used herein, the terms "Registration Statement", "Basic
Prospectus", "Prospectus" and "Preliminary Prospectus" shall include in each
case the material, if any, incorporated by reference therein.
The term "Underwriters' Securities" means the Securities to be
purchased by the Underwriters herein. The term "Contract Securities" means the
Securities, if any, to be purchased pursuant to the delayed delivery contracts
referred to below.
<PAGE> 2
II.
If the Prospectus provides for sales of Securities pursuant to delayed
delivery contracts, the Company hereby authorizes the Underwriters to solicit
offers to purchase Contract Securities on the terms and subject to the
conditions set forth in the Prospectus pursuant to delayed delivery contracts
substantially in the form of Schedule I attached hereto ("Delayed Delivery
Contracts") but with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors
approved by the Company and of the types set forth in the Prospectus. On the
Closing Date (as herein defined), the Company will pay the managing Underwriter
of the offering of the Securities (the "Manager") as compensation, for the
accounts of the Underwriters, the fee set forth in the Underwriting Agreement in
respect of the principal amount of Contract Securities. The Underwriters will
not have any responsibility in respect of the validity or the performance of
Delayed Delivery Contracts. If the Company executes and delivers Delayed
Delivery Contracts with institutional investors, the Contract Securities shall
be deducted from the Securities to be purchased by the several Underwriters and
the aggregate principal amount of Securities to be purchased by each Underwriter
shall be reduced pro rata in proportion to the principal amount of Securities
set forth opposite each Underwriter's name in the Underwriting Agreement, except
to the extent that the Manager determines that such reduction shall be otherwise
and so advises the Company.
III.
The Company is advised by the Manager that the Underwriters propose to
make a public offering of their respective portions of the Underwriters'
Securities as soon after this Agreement is entered into as in the Manager's
judgment is advisable. The terms of the public offering of the Underwriters'
Securities are set forth in the Prospectus.
IV.
Payment for the Underwriters' Securities shall be made to the Company
in Federal or other funds immediately available in New York City against
delivery of such Securities for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, not later than _________, 1999,
as shall be designated in writing by the Manager. The time and date of such
payment and delivery with respect to the Underwriters' Securities are herein
referred to as the "Closing Date."
V.
The several obligations of the Underwriters hereunder are subject to
the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, no proceedings for such purpose shall be pending
before or threatened by the Commission, there shall have been no material
adverse change (not in the ordinary course of business) in the financial
condition of the Company and its subsidiaries, taken as a whole, from
-2-
<PAGE> 3
that set forth in the Registration Statement and the representations and
warranties of the Company in this Agreement shall be true and correct in all
material respects on and as of the Closing Date with the same effect as if made
on the Closing Date; and the Manager shall have received on the Closing Date a
certificate, dated the Closing Date and signed on behalf of the Company by an
executive officer of the Company , to the foregoing effect. The officer making
such certificate may rely upon the best of his knowledge as to proceedings
threatened.
(b) The Manager shall have received on the Closing Date an opinion of
Drinker Biddle & Reath LLP, counsel to the Company, dated the Closing Date, to
the effect that:
(i) the Securities have been duly authorized and, when duly
executed and authenticated in accordance with the terms of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, or by
institutional investors, if any, pursuant to Delayed Delivery
Contracts, will constitute valid and binding obligations of
the Company entitled to the benefits provided by the
Indenture, enforceable in accordance with the terms thereof
subject to (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general
principles of equity and the discretion of the court before
which any proceeding therefor may be brought);
(ii) this Agreement has been duly authorized, executed and
delivered by the Company;
(iii) the Indenture has been duly authorized, executed and
delivered by the Company and, assuming due authorization,
execution and delivery thereof by the Trustee, constitutes a
valid and binding agreement of the Company, enforceable in
accordance with its terms subject to (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity and the
discretion of the court before which any proceeding therefor
may be brought); and the Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act);
(iv) the execution, delivery and performance of the Company's
obligations under this Agreement will not violate any
provision of applicable law (except that such counsel need
express no opinion in this paragraph as to compliance with any
disclosure requirement or any prohibition against fraud or
misrepresentation or as to whether performance of any
indemnification or contribution provisions would be permitted)
or the Certificate of Incorporation or By-laws of the Company
or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company of any of
its Significant Subsidiaries (as defined below) known to such
counsel;
-3-
<PAGE> 4
(v) in connection with the offer and sale of the Securities by
the Underwriters as contemplated by the Registration Statement
the Company is not required to obtain any consent, approval or
authorization of any governmental body or agency for the
performance of its obligations under this Agreement other than
the registration of the Securities under the Securities Act,
authorizations or qualifications required under the Trust
Indenture Act and compliance with the insurance, securities
and Blue Sky Laws of various jurisdictions (as to which we
express no opinion);
(vi) the statements in the Prospectus under "Description of
the Securities" and "Plan of Distribution", insofar as such
statements constitute a summary of the documents or
proceedings referred to therein, fairly present the
information called for with respect to such documents and
proceedings.
Such counsel shall also provide its advice that (relying as to factual
matters to the extent deemed appropriate by such counsel upon
representations and statements of officers and other representatives of
the Company) no facts came to its attention that caused such counsel to
conclude that (i) the Registration Statement (including the documents
incorporated by reference therein, except for (1) financial statements
and schedules and other financial and statistical data included or
incorporated by reference therein and (2) that part of the Registration
Statement that constitutes the Statement of Eligibility on Form T-1 of
the Trustee, as to which, in the case of either (1) or (2), such
counsel need express no belief), on its effective date, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, (ii) the Prospectus, on the date it bears or as
of the Closing Date, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading or (iii) as of the effective
date of the Registration Statement, either the Registration Statement
or the Prospectus appears on its face not to be responsive in all
material respects to the requirements of Form S-3 or of the Trust
Indenture Act (except for, in each case, financial statements and
schedules and other financial and statistical data included therein or
omitted therefrom, as to which such counsel need not express any
opinion).
With respect to the opinion to be provided pursuant to the immediately
preceding paragraph, such counsel may state that its opinion and belief
are based on its participation in the preparation of the Registration
Statement and Prospectus, and any amendments or supplements thereto,
and discussion of the contents thereof, but are without independent
check or verification, except as specified.
(c) The Manager shall have received on the Closing Date an
opinion of Logan G. Robinson, General Counsel of the Company, dated the
Closing Date, to the effect that:
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of
the State of Delaware, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus and
is duly qualified to transact business and is in good standing in each
other
-4-
<PAGE> 5
jurisdiction in which it owns or leases properties or conducts any
business, in each case so as to require such qualification;
(ii) each Significant Subsidiary of the Company has
been duly incorporated or organized, as the case may be, is validly
existing as a corporation or a limited liability company, as the case
may be, in good standing under the laws of the jurisdiction of its
incorporation, has the corporate or limited liability company power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each other jurisdiction in which it owns or leases
properties or conducts any business, in each case so as to require such
qualification;
(iii) all of the issued and outstanding shares of
capital stock or limited liability company interests, as the case may
be, of each Significant Subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable in the
case of a corporation and are owned of record, directly or indirectly
by the Company, free and clear of all liens, encumbrances, equities or
claims;
(iv) other than as set forth or contemplated in the
Prospectus, there are no governmental investigations, legal or
governmental actions, suits or proceedings pending or, to the best of
such counsel's knowledge, threatened against or affecting the Company
or any of its subsidiaries or any of their respective properties or to
which the Company or any of its subsidiaries is or may be a party or to
which any property of the Company or its subsidiaries is or may be
subject which, if determined adversely to the Company or any of its
subsidiaries, would, individually or in the aggregate, have, or
reasonably be expected to have, a material adverse effect on the
business, financial position or results of operations of the Company
and its subsidiaries taken as a whole; to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and such counsel does
not know of any such pending or threatened action, suit or proceeding
or of any statutes, regulations, contracts or other documents required
to be filed as an exhibit to the Registration Statement or required to
be described in the Registration Statement or the Prospectus which are
not filed or described as required; and
(v) neither the Company nor any of its Significant
Subsidiaries is, or with the giving of notice or lapse of time or both
would be, in violation of or in default under, its Articles of
Incorporation or By-Laws or any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such counsel
to which the Company or any of its Significant Subsidiaries is a party
or by which it or any of them or any of their respective properties is
bound, except for violations and defaults which individually and in the
aggregate are not material to the Company and its Significant
Subsidiaries taken as a whole or to the holders of the Securities;
(d) The Manager shall have received on the Closing Date an
opinion of counsel for the Underwriters, dated the Closing Date with respect to
the validity of the Indenture and the Securities, the Registration Statement,
the Prospectus and other related matters as the
-5-
<PAGE> 6
Underwriters may reasonably request, and such counsel shall have received such
papers and information as it may reasonably request to enable it to pass upon
such matters.
(e) The Manager shall have received on the Closing Date a
letter dated the Closing Date in form and substance satisfactory to the Manager,
from DeLoitte & Touche LLP, independent accountants, containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Registration
Statement and the Prospectus.
If any condition specified in this Article V shall not have
been fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Manager by notice to the Company at any time at or prior to
the Closing Date, and such termination shall be without liability of any party
to any other party, except as provided in Article X.
VI.
In further consideration of the agreements of the Underwriters
contained in this Agreement, the Company covenants as follows:
(a) To file the Prospectus in a form approved by the Underwriters
pursuant to Rule 424 under the Securities Act not later than the Commission's
close of business on the second Business Day following the date of determination
of the offering price of the Securities or, if applicable, such earlier time as
may be required by Rule 424(b). As used herein, the term "Business Day" means
any day other than a day on which banks are permitted or required to be closed
in New York City;
(b) To furnish the Manager, without charge, a copy of the Registration
Statement including exhibits and materials, if any, incorporated by reference
therein and, during the period mentioned in paragraph (d) below, as many copies
of the Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto as the Manager may reasonably request.
(c) From the date hereof and prior to the Closing Date, before amending
or supplementing the Registration Statement or the Prospectus, to furnish the
Manager a copy of each such proposed amendment or supplement.
(d) If, during such period after the first date of the public offering
of the Securities as in the opinion of counsel for the Underwriters, the
Prospectus is required by law to be delivered, any event shall occur as a result
of which it is necessary to amend or supplement the Prospectus in order to make
the statements therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to prepare
and furnish, at its own expense, to the Underwriters, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances when
-6-
<PAGE> 7
the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as so amended or supplemented, will comply with applicable law,
[provided that all expenses with respect to any amendment of or supplement to
the Prospectus required to correct a misleading statement made therein in
reliance upon and in conformity with information relating to an Underwriter
furnished to the Company in writing by such Underwriter expressly for use
therein, and confirmed by such Underwriter in a separate "blood letter" as
having been furnished specifically for such purpose, shall be borne by such
Underwriter.]
(e) To promptly advise the Manager of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose, and of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose.
(f) To endeavor to qualify the Securities for offer and sale under the
securities or Blue Sky Laws of such jurisdictions as the Manager shall
reasonably request and to pay all reasonable expenses (including reasonable fees
and disbursements of counsel) in connection with such qualification.
(g) To make generally available to the Company's security holders as
soon as practicable an earnings statement covering the twelve-month period
beginning with the first fiscal quarter of the Company occurring after the
effective date of the Registration Statement, which shall satisfy the provisions
of Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder.
VII.
The Company represents and warrants to each Underwriter that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before, or to its knowledge threatened
by, the Commission.
(b) (i) The Registration Statement, when it became effective, did not
contain and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading,
(ii) the Registration Statement and the Prospectus (as amended or supplemented,
if applicable), comply and will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder and (iii) the Prospectus, on the date it bears or as of the Closing
Date, does not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply to (i) statements or
omissions in the Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter expressly for use therein and (ii) that part of the Registration
-7-
<PAGE> 8
Statement which constitutes the Statement of Eligibility and Qualification (Form
T-1) of the Trustee under the Trust Indenture Act.
(c) The Company has been duly incorporated, is validly existing as a
company in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or to be in good standing would not
have a material adverse effect on the Company and its subsidiaries, taken as a
whole.
(d) Each Significant Subsidiary of the Company has been duly
incorporated or organized, as the case may be, is validly existing as a company
or a limited liability company, as the case may be, in good standing under the
laws of the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that the
failure to be so qualified or to be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole; all of the
issued shares of capital stock or limited liability company interests, as the
case may be, of each Significant Subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable and are owned
by the Company and its subsidiaries free and clear of all liens, encumbrances,
equities or claims. Delphi Automotive Systems LLC, Delco Electronics Corporation
and Delphi Automotive Systems (Holding), Inc. (collectively, the "Significant
Subsidiaries") are the only subsidiaries of the Company that are "significant
subsidiaries" as such term is defined in Rule 1-02(w) of Regulation S-X.
(e) This Agreement has been duly authorized, executed and delivered by
the Company.
(f) The Securities have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such Securities will
not be subject to any preemptive or similar rights.
(g) The Indenture has been duly authorized and duly qualified under the
Trust Indenture Act and, when executed and delivered by the Company and the
Trustee, the Indenture will constitute a valid and binding instrument
enforceable in accordance with its terms, subject to (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of equity
and the discretion of the court before which any proceeding therefor may be
brought; and the Securities and the Indenture will conform to the descriptions
thereof in the Prospectus.
(h) The execution, delivery and performance of this Agreement will not
violate (i) any provision of applicable law or the Certificate of Incorporation
or By-laws of the Company or (ii) any agreement or other instrument binding upon
the Company or any of its subsidiaries, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over
-8-
<PAGE> 9
the Company or any subsidiary, except for any such agreements, instruments,
judgments, orders or decrees that would not, singularly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries as a whole.
(i) No consent, approval or authorization of any governmental body or
agency is required for the performance of this Agreement other than the
registration of the Securities under the Securities Act and compliance with the
Trust Indenture Act or insurance, securities and Blue Sky Laws of various
jurisdictions.
VIII.
The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls such Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of
1934, as amended, from and against any and all losses, claims, damages and
liabilities caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any Preliminary Prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information furnished in writing to the Company by any Underwriter expressly for
use therein, and agrees to reimburse each such indemnified party, as incurred,
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such losses, claims, damages or liabilities
promptly after receipt of adequate documentation relating thereto, provided that
the foregoing indemnity agreement with respect to any Preliminary Prospectus or
Prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Securities, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) was not sent or given by or on behalf of
such Underwriter to such person, if required by law so to have been delivered,
at or prior to the written confirmation of the sale of the Securities to such
person, and if the Prospectus (as so amended or supplemented) would have cured
the defect giving rise to such losses, claims, damages or liabilities, unless
such failure is the result of noncompliance by the Company with Article VI(b)
hereof.
Each Underwriter severally agrees to indemnify and hold harmless the
Company, its directors, its officers who sign the Registration Statement and any
person controlling the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished in writing by
such Underwriter expressly for use in the Registration Statement, the
Prospectus, any amendment or supplement thereto, or any Preliminary Prospectus.
In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two
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<PAGE> 10
preceding paragraphs, such person (the "indemnified party") shall promptly
notify the person against whom such indemnity may be sought (the "indemnifying
party") in writing and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the reasonable fees and disbursements
of such counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but the
reasonable fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party shall have agreed in writing
to pay such fees and expenses, (ii) the indemnifying party shall have failed to
assume the defense of such proceeding and employ counsel reasonably satisfactory
to the indemnified person in such proceeding or (iii) the named parties to any
such proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that the indemnifying party shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to local counsel) for all such indemnified parties, and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be designated
in writing by the Manager in the case of parties indemnified pursuant to the
second preceding paragraph and by the Company in the case of parties indemnified
pursuant to the first preceding paragraph. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is entitled to indemnification
hereunder, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
If the indemnification provided for in the first or second paragraph of
this Article VIII is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and of the Underwriters
on the other in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other in connection with the offering of
the Securities shall be deemed to be in the same respective proportions as the
net proceeds from the offering of such Securities (before deducting expenses)
received by the Company and the total underwriting discounts and commissions
received by the Underwriters bear to the aggregate public offering price of the
Securities. The relative fault of the Company on the one hand and of the
Underwriters on the other shall be determined by reference to, among other
things, whether
-10-
<PAGE> 11
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VIII were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amounts paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraphs shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Article VIII, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten and distributed to the public by such
Underwriter were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' respective
obligations to contribute pursuant to this Article VIII are several, in
proportion to the respective principal amounts of Securities purchased by each
of such Underwriters, and not joint. The remedies provided for in this Article
VIII are not exclusive and shall not limit any rights or remedies that may
otherwise be available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Article
VIII and the representations and warranties of the Company contained in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by any
Underwriter or on behalf of any Underwriter or any person controlling any
Underwriter or by or on behalf of the Company, its directors or officers or any
person controlling the Company and (iii) acceptance of any payment for any of
the Securities.
IX.
This Agreement shall be subject to termination in the absolute
discretion of the Manager, by notice given to the Company, if (a) after the
execution and delivery of this Agreement and prior to the Closing Date (i)
trading in securities generally on the New York Stock Exchange or the American
Stock Exchange shall have been suspended or materially limited, (ii) trading of
any securities of the Company shall have been suspended on any exchange or in
any over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any material outbreak or
escalation of hostilities or other calamity and (b) in the case of any of the
events specified in clauses (i) through (iv), such event, singly or together
with any other such event, makes it, in the Manager's reasonable judgment,
impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus.
-11-
<PAGE> 12
X.
If as of the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase the Securities that it or they have agreed to
purchase hereunder on such date, and the aggregate principal amount of the
Securities that such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase is not more than one-tenth of the aggregate principal amount
of the Securities to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the principal amount of the
Securities set forth opposite their names in Schedule II bears to the aggregate
principal amount of the Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Manager may
specify, to purchase the Securities that such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the principal amount of the Securities that any
Underwriter has agreed to purchase pursuant to Schedule II be increased pursuant
to this Article X by an amount in excess of one-tenth of such amount without the
written consent of such Underwriter. If on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Securities and the aggregate
principal amount of the Securities with respect to which such default occurs is
more than one-tenth of the aggregate principal amount of the Securities to be
purchased, and arrangements satisfactory to the Underwriters and the Company for
the purchase of such Securities are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either the
Underwriters or the Company shall have the right to postpone the Closing Date,
but in no event for longer than seven days, in order that the required changes,
if any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. Any action taken under this paragraph
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement, with respect to themselves, severally, for
all reasonable out-of-pocket expenses (including the reasonable fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering of the Securities.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
-12-
<PAGE> 13
DELPHI AUTOMOTIVE SYSTEMS
CORPORATION
By:
-----------------------
[Name of Managing Underwriter]
Acting on behalf of itself
and the several
Underwriters named in
Schedule II hereto.
By:
-----------------------
-13-
<PAGE> 14
, 1999
Delphi Automotive Systems Corporation
5725 Delphi Drive
Troy, MI 48098
Dear Sirs:
We (the "Underwriters") understand that Delphi Automotive Systems
Corporation, a Delaware corporation (the "Company"), proposes to issue and sell
$ aggregate principal amount of % [title of issue] Due
(the "Securities"). Subject to the terms and conditions set forth herein or
incorporated by reference herein, the Company hereby agrees to sell and we agree
to purchase, severally and not jointly, the principal amounts of such Securities
set forth below opposite our names at % of their principal amount and
accrued interest, if any, from , 1999 to the date of payment and
delivery:
NAME OF UNDERWRITER PRINCIPAL AMOUNT
- ------------------- ----------------
$
=====================
The Underwriters will pay for such Securities upon delivery thereof at
the offices of at a.m. (New York time) on
, 1999, as shall be designated by the Manager. The Securities
shall have the terms set forth in the Company's Prospectus Supplement dated
, 19 relating to the Securities and the Prospectus dated
, 19 , particularly as follows:
Maturity:
Interest Rate:
Interest Payment Dates:
Redemption Provisions:
Other Principal Terms:
-14-
<PAGE> 15
All the provisions contained in the document entitled "Delphi
Automotive Systems Corporation Form of Underwriting Agreement" dated , 1999,
a copy of which we have previously received, are herein incorporated by
reference in their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein. The
term "Manager" as used therein, for purposes of this Agreement, means [name of
Underwriter].
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below. This Agreement may be
signed in any number of counterparts with the same effect as if the signatures
thereto and hereto were upon the same instrument.
Very truly yours,
[Name of Manager]
On behalf of itself and the other
Underwriters named heretofore
By:
-------------------------
Accepted:
Delphi Automotive Systems Corporation
By:
-------------------------
-15-
<PAGE> 16
Schedule I
DELAYED DELIVERY CONTRACT
, 1999
Dear Sirs:
The undersigned hereby agrees to purchase from Delphi Automotive
Systems Corporation, a Delaware corporation (the "Company") and the Company
agrees to sell to the undersigned $ principal amount of the Company's
[state title of issue] (the "Securities"), offered by the Company's Prospectus
dated , 1999 and Prospectus Supplement dated ,
19 , receipt of copies of which are hereby acknowledged, at a purchase price of
% of the principal amount thereof plus accrued interest, if any, and on
the further terms and conditions set forth in this contract. The undersigned
does not contemplate selling Securities prior to making payment therefor.
The undersigned will purchase from the Company Securities in the
principal amounts and on the delivery dates set forth below:
DELIVERY PRINCIPAL PLUS ACCRUED
DATE AMOUNT INTEREST FROM:
$
----------------- ------------------ --------------------
$
----------------- ------------------ --------------------
$
----------------- ------------------ --------------------
Each such date on which Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date".
Payment for the Securities that the undersigned has agreed to purchase
on each Delivery Date shall be made to the Company or its order by certified or
official bank check in New York Clearing House funds at the office of
, New York, NY, at a.m. (New York time) on the
Delivery Date, upon delivery to the undersigned of the Securities to be
purchased by the undersigned on the Delivery Date, in such denominations and
registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and
-16-
<PAGE> 17
delivery shall have taken place to the underwriters (the "Underwriters") named
in the Prospectus Supplement referred to above, such part of the Securities as
is to be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned at its address
set forth below notice to such effect, accompanied by a copy of the opinion of
counsel for the Company delivered to the Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
If this contract is acceptable to the Company, it is requested that the
Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This will
become a binding contract as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
This contract shall be governed by and construed in accordance with the laws of
the State of New York.
Very truly yours,
-----------------------------
(Purchaser)
By:
-------------------------
Title:
------------------------
------------------------------
------------------------------
(Address)
Accepted:
Delphi Automotive Systems Corporation
By:
--------------------------
Title:
------------------------
-17-
<PAGE> 18
SCHEDULE II
UNDERWRITERS
Underwriter Principal Amount of Securities to be Purchased
- ----------- ----------------------------------------------
[insert names]
Aggregate Principal Amount............... $
-----------------------
-18-
<PAGE> 1
EXHIBIT 4.1
DELPHI AUTOMOTIVE SYSTEMS CORPORATION
AND
THE FIRST NATIONAL BANK OF CHICAGO
TRUSTEE
INDENTURE
DATED AS OF _________, 1999
DEBT SECURITIES
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
Article One. DEFINITIONS.....................................................................................2
SECTION 1.01.Definitions................................................................................2
Additional Amounts....................................................................................3
Authorized Newspaper..................................................................................3
Board Of Directors....................................................................................3
Board Resolution......................................................................................3
Business Day..........................................................................................3
Corporate Trust Office................................................................................3
Corporation...........................................................................................4
Corporation Order.....................................................................................4
Coupon................................................................................................4
Coupon Security.......................................................................................4
Currency..............................................................................................4
Depository............................................................................................4
Event Of Default......................................................................................4
Global Security.......................................................................................5
Holder................................................................................................5
Indenture.............................................................................................5
Interest Payment Date.................................................................................5
Issue Date............................................................................................5
Maturity Date.........................................................................................5
Officers' Certificate.................................................................................5
Opinion Of Counsel....................................................................................5
Original Issue Discount Securities....................................................................6
Outstanding...........................................................................................6
Paying Agent..........................................................................................6
Person................................................................................................6
Place Of Payment......................................................................................7
Registered Security...................................................................................7
Regular Record Date...................................................................................7
Responsible Officer...................................................................................7
Security Register And Security Registrar..............................................................7
Significant Subsidiary................................................................................7
Subsidiary............................................................................................7
Trust Indenture Act Of 1939:..........................................................................8
United States.........................................................................................8
Unregistered Security.................................................................................8
U.S. Dollar...........................................................................................8
SECTION 1.02. Notice To Securityholders....................................................8
Article Two. ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES.......................................9
SECTION 2.01. Amount Unlimited; Issuable In Series.........................................9
SECTION 2.02. Form Of Trustee's Certificate Of Authentication.............................11
</TABLE>
-i-
<PAGE> 3
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
SECTION 2.03. Form, Execution, Authentication, Delivery And Dating Of Securities..........12
SECTION 2.04. Denominations; Record Date..................................................13
SECTION 2.05. Exchange And Registration Of Transfer Of Securities.........................14
SECTION 2.06. Temporary Securities........................................................16
SECTION 2.07. Mutilated, Destroyed, Lost Or Stolen Securities.............................16
SECTION 2.08. Cancellation................................................................17
SECTION 2.09. Computation Of Interest.....................................................17
SECTION 2.10. Securities In Global Form...................................................17
SECTION 2.11. Medium-Term Securities......................................................18
SECTION 2.12. CUSIP Numbers...............................................................19
Article Three. REDEMPTION OF SECURITIES.............................................................19
SECTION 3.01. Redemption Of Securities; Applicability Of Article..........................19
SECTION 3.02. Notice Of Redemption; Selection Of Securities...............................19
SECTION 3.03. Payment Of Securities Called For Redemption.................................21
Article Four. PARTICULAR COVENANTS OF THE CORPORATION..............................................21
SECTION 4.01. Payment Of Principal, Premium, Interest And Additional Amounts..............21
SECTION 4.02. Offices For Notices And Payments, Etc.......................................22
SECTION 4.03. Provisions As To Paying Agent...............................................23
SECTION 4.04. Luxembourg Publications....................................................24
SECTION 4.05. Statement By Officers As To Default.........................................24
SECTION 4.06. Limitations On Liens........................................................24
SECTION 4.07. Limitation On Sale And Lease-Back...........................................25
SECTION 4.08. Definitions Applicable To Sections 4.06 And 4.07............................26
Article Five. SECURITYHOLDER LISTS AND REPORTS BY THE CORPORATION AND THE TRUSTEE..................27
SECTION 5.01. Securityholder Lists........................................................27
SECTION 5.02. Preservation And Disclosure Of Lists........................................28
SECTION 5.03. Reports By The Corporation..................................................29
SECTION 5.04. Reports By The Trustee......................................................30
Article Six. REMEDIES ON DEFAULT..................................................................30
SECTION 6.01. Events Of Default...........................................................30
SECTION 6.02. Payment Of Securities On Default; Suit Therefor.............................32
SECTION 6.03. Application Of Moneys Collected By Trustee..................................34
SECTION 6.04. Proceedings By Securityholders..............................................35
SECTION 6.05. Remedies Cumulative And Continuing..........................................36
SECTION 6.06. Direction Of Proceedings....................................................36
SECTION 6.07. Notice Of Defaults..........................................................37
SECTION 6.08. Undertaking To Pay Costs....................................................37
Article Seven. CONCERNING THE TRUSTEE...............................................................38
SECTION 7.01. Duties And Responsibilities Of Trustee......................................38
SECTION 7.02. Reliance On Documents, Opinions, Etc........................................39
</TABLE>
-ii-
<PAGE> 4
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
SECTION 7.03. No Responsibility For Recitals, Etc.........................................40
SECTION 7.04. Ownership Of Securities Or Coupons..........................................40
SECTION 7.05. Moneys To Be Held In Trust..................................................40
SECTION 7.06. Compensation And Expenses Of Trustee........................................40
SECTION 7.07. Officers' Certificate As Evidence...........................................41
SECTION 7.08. Conflicting Interest Of Trustee.............................................41
SECTION 7.09. Eligibility Of Trustee......................................................41
SECTION 7.10. Resignation Or Removal Of Trustee...........................................41
SECTION 7.11. Acceptance By Successor Trustee.............................................43
SECTION 7.12. Successor By Merger, Etc....................................................44
SECTION 7.13. Limitations On Rights Of Trustee As Creditor................................44
Article Eight. CONCERNING THE SECURITYHOLDERS.......................................................44
SECTION 8.01. Action By Securityholders...................................................44
SECTION 8.02. Proof Of Execution By Securityholders.......................................45
SECTION 8.03. Who Are Deemed Absolute Owners..............................................45
SECTION 8.04. Corporation-Owned Securities Disregarded....................................46
SECTION 8.05. Revocation Of Consents; Future Securityholders Bound........................46
SECTION 8.06. Securities In A Foreign Currency............................................46
Article Nine. SECURITYHOLDERS' MEETINGS............................................................47
SECTION 9.01. Purposes Of Meetings........................................................47
SECTION 9.02. Call Of Meetings By Trustee.................................................48
SECTION 9.03. Call Of Meetings By Corporation Or Securityholders..........................48
SECTION 9.04. Qualification For Voting....................................................49
SECTION 9.05. Regulations.................................................................49
SECTION 9.06. Voting......................................................................49
Article Ten. SUPPLEMENTAL INDENTURES..............................................................50
SECTION 10.01. Supplemental Indentures Without Consent Of Securityholders..................50
SECTION 10.02. Supplemental Indentures With Consent Of Securityholders.....................51
SECTION 10.03. Compliance With Trust Indenture Act; Effect Of Supplemental Indentures......52
SECTION 10.04. Notation On Securities......................................................53
Article Eleven. CONSOLIDATION, MERGER, SALE OR CONVEYANCE............................................53
SECTION 11.01. Corporation May Consolidate, Etc., On Certain Terms.........................53
SECTION 11.02. Successor Corporation Substituted...........................................53
SECTION 11.03. Certificate To Trustee......................................................54
Article Twelve. SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS............................54
SECTION 12.01. Discharge Of Indenture......................................................54
SECTION 12.02. Satisfaction, Discharge And Defeasance Of Securities Of Any Series..........55
SECTION 12.03. Deposited Moneys To Be Held In Trust By Trustee.............................56
SECTION 12.04. Paying Agent To Repay Moneys Held...........................................56
</TABLE>
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<PAGE> 5
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 12.05. Return Of Unclaimed Moneys.........................................................57
Article Thirteen IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS....................57
SECTION 13.01. Indenture And Securities Solely Corporate Obligations..............................57
Article Fourteen. MISCELLANEOUS PROVISIONS...........................................................58
SECTION 14.01. Benefits Of Indenture Restricted To Parties And Securityholders....................58
SECTION 14.02. Provisions Binding On Corporation's Successors.....................................58
SECTION 14.03. Addresses For Notices, Etc.........................................................58
SECTION 14.04. Evidence Of Compliance With Conditions Precedent...................................58
SECTION 14.05. Legal Holidays.....................................................................59
SECTION 14.06. Trust Indenture Act To Control.....................................................59
SECTION 14.07. Execution In Counterparts..........................................................59
SECTION 14.08. New York Contract..................................................................59
SECTION 14.09. Judgment Currency..................................................................59
SECTION 14.10. Severability Of Provisions.........................................................60
SECTION 14.11. Corporation Released From Indenture Requirements Under
Certain Circumstances..............................................................60
</TABLE>
-iv-
<PAGE> 6
of provisions of Trust Indenture Act of 1939 with Indenture dated as of
, 1999, between DELPHI AUTOMOTIVE SYSTEMS CORPORATION and THE FIRST
NATIONAL BANK OF CHICAGO as Trustee;
<TABLE>
<CAPTION>
SECTION OF ACT SECTION
OF INDENTURE
<S> <C>
310(a)(1),(2)and (5)......................................... 7.09
310(a)(3) and (4)............................................ Not applicable
310(b)....................................................... 7.08
310(c)....................................................... Not applicable
311(a) and (b)............................................... 7.13
311(c)....................................................... Not applicable
312(a)....................................................... 5.01 and 5.02(a)
312(b) and (c)............................................... 5.02(b) and (c)
313(a) and (b)............................................... 5.04(a)
313(c)....................................................... 5.04(a)
313(d)....................................................... 5.04(b)
314(a)....................................................... 5.03
314(b)....................................................... Not applicable
314(c)(1) and (2)............................................ 14.04
314(c)(3).................................................... Not applicable
314(d)....................................................... Not applicable
314(e)....................................................... 14.04
315(a), (c) and (d).......................................... 7.01
315(b)....................................................... 6.07
315(e)....................................................... 6.08
316(a)(1).................................................... 6.06
316(a)(2).................................................... Omitted
316(a)last sentence.......................................... 8.04
316(b)....................................................... 6.04
316(c)....................................................... 9.02
317(a)....................................................... 6.02
317(b)....................................................... 4.03
318(a)....................................................... 14.06
</TABLE>
This tie-sheet is not part of the Indenture as executed.
-1-
<PAGE> 7
THIS INDENTURE, dated as of the day of , 1999 between DELPHI
AUTOMOTIVE SYSTEMS CORPORATION, a corporation duly organized and existing under
the laws of the State of Delaware (hereinafter sometimes called the
"Corporation"), party of the first part, and THE FIRST NATIONAL BANK OF CHICAGO,
a banking association duly incorporated and existing under the laws of the
United States of America, as trustee hereunder (hereinafter sometimes called the
"Trustee," which term shall include any successor trustee appointed pursuant to
Article Seven).
WITNESSETH:
WHEREAS, the Corporation deems it necessary or appropriate to issue
from time to time for its lawful purposes securities (hereinafter called the
"Securities" or, in the singular, "Security") evidencing its unsecured
indebtedness and has duly authorized the execution and delivery of this
Indenture to provide for the issuance of the Securities in one or more series,
unlimited as to principal amount, to bear such rates of interest, to mature at
such time or times and to have such other provisions as shall be established as
hereinafter provided; and
WHEREAS, the Corporation represents that all acts by it necessary to
constitute these presents a valid indenture and agreement according to its terms
have been done and performed, and the execution of this Indenture has in all
respects been duly authorized by the Corporation, and the Corporation, in the
exercise of legal rights and power in it vested, is executing this Indenture;
NOW, THEREFORE: In order to declare the terms and conditions upon which
the Securities are authenticated, issued and received, and in consideration of
the premises, of the purchase and acceptance of the Securities by the Holders
thereof and of the sum of one dollar to it duly paid by the Trustee at the
execution of these presents, the receipt whereof is hereby acknowledged, the
Corporation covenants and agrees with the Trustee, for the equal and
proportionate benefit of the respective Holders from time to time of the
Securities, as follows:
ARTICLE ONE.
DEFINITIONS.
SECTION 1.01. Definitions. The terms defined in this Section (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. All other terms
used in this Indenture which are defined in the Trust Indenture Act of 1939 or
which are by reference therein defined in the Securities Act of 1933, as
amended, shall have the meanings (except as herein otherwise expressly provided
or unless the context otherwise clearly requires) assigned to such terms in said
Trust Indenture Act and in said Securities Act as in force at the date of this
Indenture as originally executed. The words "herein," "hereof" and "hereunder"
and other words of similar import refer to this Indenture as a
-2-
<PAGE> 8
whole, including the Exhibits to this instrument, and not to any particular
article, Section or other subdivision. Certain terms used wholly or principally
within an Article of this Indenture may be defined in that Article.
ADDITIONAL AMOUNTS:
The term "Additional Amounts" shall mean any additional amounts which
are required by a Security or by or pursuant to a Board Resolution under
circumstances specified therein, to be paid by the Corporation in respect of
certain taxes, assessments or governmental charges imposed on certain Holders of
Securities and which are owing to such Holders of Securities.
AUTHORIZED NEWSPAPER:
The term "Authorized Newspaper" shall mean a newspaper in an official
language of the country of publication of general circulation in the place in
connection with which the term is used. If it shall be impracticable in the
opinion of the Trustee to make any publication of any notice required hereby in
an Authorized Newspaper, any publication or other notice in lieu thereof which
is made or given with the approval of the Trustee shall constitute a sufficient
publication of such notice.
BOARD OF DIRECTORS:
The term "Board of Directors" shall mean the Board of Directors of the
Corporation or the Executive Committee or Finance Committee of the Corporation
or any committee established by the Board of Directors.
BOARD RESOLUTION:
The term "Board Resolution" shall mean a resolution certified by the
Secretary or an Assistant Secretary of the Corporation to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
BUSINESS DAY:
The term "Business Day" shall mean, with respect to any Security, a day
(other than a Saturday or Sunday) that in the city (or in any of the cities, of
more than one) in which amounts are payable as specified on the face of the form
of such Security, is neither a legal holiday nor a day on which banking
institutions are authorized or required by law, regulation or executive order to
close.
CORPORATE TRUST OFFICE:
The term "Corporate Trust Office" means the office of the Trustee in
Chicago, Illinois, at which at any particular time its corporate trust business
shall be principally administered, which office at the date hereof is located at
One First National Plaza, Suite 0126, Chicago, Illinois
-3-
<PAGE> 9
60670-0126, except that, with respect to presentation of Securities for payment
or registration of transfers and exchanges and the location of the Security
Registrar, such term means the office or agency of the Trustee located at 14
Wall Street, 8th Floor, New York, New York 10005.
CORPORATION:
The term "Corporation" shall mean the person named as the "Corporation"
in the first paragraph of this instrument until a successor corporation shall
have become such pursuant to the applicable provisions of this Indenture, and
thereafter "Corporation" shall mean such successor corporation.
CORPORATION ORDER:
The term "Corporation Order" shall mean any request, order or
confirmation to the Trustee signed by a person designated pursuant to Section
2.03, which may be transmitted by telex, by telecopy or in writing.
COUPON:
The term "Coupon" shall mean any interest coupon appertaining to a
Security.
COUPON SECURITY:
The term "Coupon Security" shall mean any Security authenticated and
delivered with one or more Coupons appertaining thereto.
CURRENCY:
The term "Currency" means dollars or foreign currency.
DEPOSITORY:
The term "Depository" shall mean, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depository by the Corporation pursuant to
Section 2.01 until a successor Depository shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Depository" shall mean
or include each Person who is then a Depository hereunder, and if at any time
there is more than one such Person, "Depository" as used with respect to the
Securities of any such series shall mean the Depository with respect to the
Securities of that series.
EVENT OF DEFAULT:
The term "Event of Default" shall mean any event specified as such in
Section 6.01.
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GLOBAL SECURITY:
The term "Global Security" shall mean a Registered Security or an
Unregistered Security evidencing all or part of a series of Securities issued to
the Depository for such series in accordance with Section 2.03.
HOLDER:
The terms "Holder," "Holder of Securities," "Securityholder" or other
similar terms, shall mean (a) in the case of any Registered Security, the person
in whose name at the time such Security is registered on the registration books
kept for that purpose in accordance with the terms hereof, and (b) in the case
of any Unregistered Security, the bearer of such Security.
INDENTURE:
The term "Indenture" shall mean this instrument as originally executed
or as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof.
INTEREST PAYMENT DATE:
The term "Interest Payment Date" when used with respect to any
Security, means the stated maturity of an installment of interest on such
Security.
ISSUE DATE:
The term "Issue Date" shall mean, with respect to any Security, whether
evidenced by a Registered Security or an Unregistered Security, the date such
Security is authenticated pursuant to Section 2.03.
MATURITY DATE:
The term "Maturity Date" when used with respect to any Security, shall
mean the stated maturity of the Security.
OFFICERS' CERTIFICATE:
The term "Officers' Certificate" shall mean a certificate signed on
behalf of the Corporation (and without personal liability), and complying with
Section 14.04, by the Chairman of the Board of Directors or the President or any
Vice President or the Treasurer and by the Secretary or any Assistant Secretary
or, if the other signatory is other than the Treasurer, any Assistant Treasurer
of the Corporation.
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OPINION OF COUNSEL:
The term "Opinion of Counsel" shall mean an opinion in writing,
complying with Section 14.04, signed by legal counsel who may be an employee of
or counsel to the Corporation or who may be other counsel acceptable to the
Trustee.
ORIGINAL ISSUE DISCOUNT SECURITIES:
The term "Original Issue Discount Securities" shall mean any Securities
that are initially sold at a discount from the principal amount thereof and that
provide upon an Event of Default for declaration of an amount less than the
principal amount thereof to be due and payable upon acceleration thereof.
OUTSTANDING:
The term "outstanding" when used with reference to Securities, shall,
subject to the provisions of Section 8.01, Section 8.04 and Section 8.06, mean,
as of any particular time, all Securities authenticated and delivered by the
Trustee under this Indenture, except
(b) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(c) Securities, or portions thereof, for the payment or redemption
of which moneys in the necessary amount shall have been deposited in trust with
the Trustee or with any paying agent (other than the Corporation) or shall have
been set aside and segregated in trust by the Corporation (if the Corporation
shall act as its own Paying Agent), provided, that if such Securities are to be
redeemed prior to the maturity thereof, notice of such redemption shall have
been given as provided in Article Three, or provisions satisfactory to the
Trustee shall have been made for giving such notice; and
(d) Securities in lieu of and in substitution for which other
Securities shall have been authenticated and delivered pursuant to the terms of
Article Two, unless proof satisfactory to the Trustee is presented that any
such Securities are held by bona fide Holders in due course.
PAYING AGENT:
The term "Paying Agent" shall mean initially The First Bank of Chicago
and, subsequently, any other paying agent appointed by the Corporation from time
to time in respect of the Securities.
PERSON:
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The term "person" shall mean any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company trust
or other entity, unincorporated organization or government or any agency or
political subdivision thereof.
PLACE OF PAYMENT:
The term "Place of Payment," when used with respect to the Securities
of any series, means the place or places where the principal of (and premium, if
any) and interest, if any, (and Additional Amounts, if any) on the Securities of
that series are payable.
REGISTERED SECURITY:
The term "Registered Security" shall mean any Security registered on
the Security registration books of the Corporation.
REGULAR RECORD DATE:
The term "Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Sections 2.01 and 2.04.
RESPONSIBLE OFFICER:
The term "responsible officer" when used with respect to the Trustee
shall mean any officer assigned by the Trustee to administer its corporate trust
matters.
SECURITY REGISTER AND SECURITY REGISTRAR:
The term "Security Register" and "Security Registrar" shall have the
respective meanings specified in Section 2.05.
SIGNIFICANT SUBSIDIARY:
The term "Significant Subsidiary" shall mean any Subsidiary of the
Corporation that, at any time, has at least 5% of the consolidated revenues of
the Corporation and its Subsidiaries at such time as reflected in the most
recent annual audited consolidated financial Statements of the Corporation.
SUBSIDIARY:
The term "Subsidiary" shall mean any corporation or other entity of
which at least a majority of the outstanding stock or other beneficial interests
having by the terms thereof ordinary voting power to elect a majority of the
board of directors or other governing body of such corporation or other entity
(irrespective of whether or not at the time stock or other beneficial interests
of another class or classes of such corporation or other entity shall have or
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might have voting power by reason of the happening of any contingency) is at the
time owned by the Corporation, or by one or more Subsidiaries, or by the
Corporation and one or more Subsidiaries.
TRUST INDENTURE ACT OF 1939:
The term "Trust Indenture Act of 1939" shall mean the Trust Indenture
Act of 1939, as amended.
United States:
The term "United States" shall mean the United States of America
(including the states thereof and the District of Columbia) and its possessions
(including the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam,
American Samoa, Wake Island and the Northern Mariana Islands).
UNREGISTERED SECURITY:
The term "Unregistered Security" shall mean any Security other than a
Registered Security.
U.S. DOLLAR:
The term "U.S. Dollar" or "$" means a dollar or other equivalent unit
in such coin or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
SECTION 1.02. NOTICE TO SECURITYHOLDERS. Except as otherwise expressly
provided herein, where this Indenture provides for notice to Holders of
Securities of any event, such notice shall be sufficiently given if in
writing and mailed, first class, postage prepaid, to each Holder at such
Holder's address as it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date, prescribed for such
notice.
Neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder of a Security shall affect the sufficiency
of such notice with respect to other Holders of Securities.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Securities shall be
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filed with the Trustee, but such filing shall not be a condition precedent to
the validity of any action taken in reliance upon such waiver.
ARTICLE TWO.
ISSUE, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES.
SECTION 2.01. Amount Unlimited; Issuable In Series. The aggregate
principal amount of Securities that may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series:
(1) the designation of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the series pursuant to
Section 2.05, 2.06, 2.07, 3.02 or 10.04);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates, which may be fixed or variable, at which the
Securities of the series shall bear interest, if any, and if the rate or rates
are variable, the manner of calculation thereof, the date or dates from which
such interest shall accrue, the Interest Payment Dates on which such interest
shall be payable and, in the case of Registered Securities, the Regular Record
Date for the determination of Holders of such Securities to whom interest is
payable on any Interest Payment Date;
(5) the place or places (in addition to such place or places specified
in this Indenture) where the principal of (and premium, if any), interest, if
any, and Additional Amounts, if any, on Securities of the series shall be
payable;
(6) the right, if any, of the Corporation to redeem Securities of the
Series, in whole or in part, at its option and the period or periods within
which, the price or prices at which and the terms and conditions upon which
Securities of the series may be redeemed pursuant to any sinking fund or
otherwise;
(7) the obligation, if any, of the Corporation to redeem, purchase or
repay Securities of the series pursuant to any mandatory redemption, sinking
fund or analogous provisions or at
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the option of a Holder thereof and the period or periods within which, the
price or prices at which and the terms and conditions upon which Securities of
the series shall be redeemed, purchased or repaid, in whole or in part, pursuant
to such obligation;
(8) if other than U.S. Dollars, the currency or currencies, including
Euros, in which the Securities of the series shall be denominated and in which
payments of principal of (premium, if any), interest, if any, and Additional
Amounts, if any, payable with respect to such Securities shall or may be
payable; the manner in which such currency or currencies will be determined; and
if the principal of (and premium, if any) interest, if any, and Additional
Amounts, if any, on the Securities of such series are to be payable, at the
election of the Corporation or a Holder thereof, in a currency or currencies,
other than that or those in which the Securities are stated to be payable, the
currency or currencies in which payment of the principal of (and premium, if
any), interest, if any, and Additional Amounts, if any, on Securities of such
series as to which such election is made shall be payable, and the periods
within which and the terms and conditions upon which such election is to be
made;
(9) if the amount of principal of and interest on the Securities of
the series may be determined with reference to an index based on a currency or
currencies other than that in which the Securities of the series are
denominated, the manner in which such amounts shall be determined;
(10) the denominations in which Securities of the series shall be
issuable, if other than U.S. $1,000 or integral multiples thereof, with respect
to Registered Securities, and denominations of U.S. $1,000 and U.S. $5,000 for
Unregistered Securities;
(11) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof or which the Trustee shall
be entitled to claim pursuant to Section 6.02;
(12) whether the Securities of the series will be issuable as
Registered Securities or Unregistered Securities (with or without Coupons), or
both, any restrictions applicable to the offer, sale or delivery of Unregistered
Securities and, if other than as provided for in Section 2.05, the terms upon
which Unregistered Securities of the series may be exchanged for Registered
Securities of such series and vice versa; and whether the Securities of the
series shall be issued in whole or in part in the form of one or more Global
Securities and, in such case, the Depository for such Global Security or
Securities and whether any Global Securities of the series are to be issuable
initially in temporary form and whether any Global Securities of the series are
to be issuable in definitive form with or without Coupons and, if so, whether
beneficial owners of interests in any such definitive Global Security may
exchange such interests for Securities of such series and of like tenor of any
authorized form and denomination, and the circumstances under which and the
place or places where any such exchanges may occur, if other than in the manner
provided in Section 2.05;
(13) whether and under what circumstances the Corporation will pay
Additional Amounts on the Securities of the series in respect of any tax,
assessment or governmental charge
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<PAGE> 16
withheld or deducted and, if so, whether the Corporation will have the option to
redeem such Securities rather than pay such Additional Amounts;
(14) the provisions, if any, for the defeasance of the Securities of
the series;
(15) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security of
such series) only upon receipt of certain certificates or other documents or
satisfaction of other conditions, the form and terms of such certificates,
documents or conditions;
(16) except as otherwise provided herein, any trustees, depositories,
authenticating or paying agents, transfer agents, registrars or any other agents
with respect to the Securities of such series;
(17) The percentage of their principal amount at which the Securities
will be issued;
(18) any securities exchanges on which the Securities will be listed;
and
(19) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture);
All Securities of any one series shall be substantially identical
except (i) as to denomination, (ii) that Securities of any series may be
issuable as either Registered Securities or Unregistered Securities and (iii) as
may otherwise be provided in or pursuant to such Board Resolution and set forth
in such Officers' Certificate or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or any Assistant Secretary of the
Corporation and delivered to the Trustee at the same time as or prior to the
delivery of the Officers' Certificate setting forth the terms of the series.
SECTION 2.02. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The
Trustee's certificate of authentication shall be in the following form:
{FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION}
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
The First National Bank of Chicago,
as Trustee,
By:_____________________________
Authorized Signatory
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SECTION 2.03. FORM, EXECUTION, AUTHENTICATION, DELIVERY AND DATING OF
SECURITIES. The Securities of each series and the Coupons, if any, to be
attached thereto, shall be in the forms approved from time to time by or
pursuant to a Board Resolution, or established in one or more indentures
supplemental hereto, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the Corporation may deem appropriate and as
are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any securities exchange on which the
Securities may be listed, or to conform to usage.
Each Security and Coupon shall be executed on behalf of the Corporation
by its Chairman of the Board of Directors or the President or any Vice President
or its Treasurer and the Secretary or any Assistant Secretary, or, if the other
signatory is other than the Treasurer, any assistant Treasurer, under its
Corporate seal. Such signatures may be the manual or facsimile signatures of the
present or any future such officers. The seal of the Corporation may be in the
form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Securities.
Each Security and Coupon bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Corporation shall
bind the Corporation, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Security, or the Security to which such Coupon appertains. At any time and from
time to time after the execution and delivery of this Indenture, the Corporation
may deliver Securities of any series executed by the Corporation and, in the
case of Coupon Securities, having attached thereto appropriate Coupons, to the
Trustee for authentication, together with a Corporation Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with such Corporation Order shall authenticate and deliver such Securities. If
the form or terms of the Securities or Coupons of the series have been
established in or pursuant to one or more Board Resolutions as permitted by this
Section and Section 2.01, in authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 7.01) shall be
fully protected in relying upon, an Opinion of Counsel stating:
(a) if the form of such Securities or Coupons has been established
by or pursuant to Board Resolution as permitted by Section 2.01, that such
form has been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as Permitted by Section 2.01, that such terms have
seen established in conformity with the provisions of this Indenture; and
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(c) that each such Security and Coupon, when authenticated and
delivered by the Trustee and issued by the Corporation in the manner and subject
to any conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Corporation, enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other laws of general applicability relating to
or affecting the enforcement of creditors' rights and to general equity
principles, whether applied in a proceeding at law or in equity. If such form or
terms have been so established, the Trustee shall not be required to
authenticate such Securities if the issue of such Securities pursuant to this
Indenture will affect the Trustee's own rights, duties or immunities under the
Securities and the Indenture or otherwise in a manner that is not reasonably
acceptable to the Trustee.
Every Registered Security shall be dated the date of its
authentication. Each Unregistered Security shall be dated as provided in or
pursuant to the Board Resolution or supplemental indenture referred to in
Section 2.01 or, if no such terms are specified, the date of its original
issuance.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if any Security shall
have been duly authenticated and delivered hereunder but never issued and sold
by the Corporation, and the Corporation shall deliver such Security to the
Trustee for cancellation as provided in Section 2.08 together with a written
statement (which need not comply with Section 14.04 and need not be accompanied
by an Opinion of Counsel) stating that such Security has never been issued and
sold by the Corporation, for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
If the Corporation shall establish pursuant to Section 2.01 that the
Securities of a series are to be issued in whole or in part in the form of a
Global Security, then the Corporation shall execute and the Trustee shall in
accordance with this Section and the Corporation Order with respect to such
series authenticate and deliver the Global Security that (i) shall represent and
shall be denominated in an aggregate amount equal to the aggregate principal
amount of outstanding Securities of such series to be represented by the Global
Security, (ii) shall be registered, if in registered form, in the name of the
Depository for such Global Security or the nominee of such Depository, and (iii)
shall be delivered by the Trustee to such Depository or pursuant to such
Depository's instructions.
Each Depository designated pursuant to Section 2.01 for a Global
Security in registered form must, at the time of its designation and at all
times while it serves as Depository, be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, and any other applicable statute or
regulation.
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SECTION 2.04. DENOMINATIONS; RECORD DATE. The Securities shall be
issuable as Registered Securities or Unregistered Securities in such
denominations as may be specified as contemplated in Section 2.01. In the
absence of any such specification with respect to any series, such Securities
shall be issuable in the denomination contemplated by Section 2.01.
The term "record date" as used with respect to an Interest Payment Date
(except a date for payment of defaulted interest) shall mean such day or days as
shall be specified in the terms of the Registered Securities of any particular
series as contemplated by Section 2.01; provided, however, that in the absence
of any such provisions with respect to any series, such term shall mean (1) the
last day of the calendar month next preceding such Interest Payment Date if such
Interest Payment Date is the fifteenth day of a calendar month; or (2) the
fifteenth day of a calendar month next preceding such Interest Payment Date if
such Interest Payment Date is the first day of the calendar month.
The person in whose name any Registered Security is registered at the
close of business on the Regular Record Date with respect to an Interest Payment
Date shall be entitled to receive the interest payable and Additional Amounts,
if any, payable on such Interest Payment Date notwithstanding the cancellation
of such Registered Security upon any transfer or exchange thereof subsequent to
such Regular Record Date and prior to such Interest Payment Date; provided,
however, that if and to the extent the Corporation shall default in the payment
of the interest and Additional Amounts, if any, due on such Interest Payment
Date, such defaulted interest and Additional Amounts, if any, shall be paid to
the persons in whose names outstanding Registered Securities are registered on a
subsequent record date established by notice given by mail by or on behalf of
the Corporation to the Holders of Securities of the series in default not less
than fifteen days preceding such subsequent record date, such record date to be
not less than five days preceding the date of payment of such defaulted
interest.
SECTION 2.05. EXCHANGE AND REGISTRATION OF TRANSFER OF SECURITIES.
Registered securities of any series may be exchanged for a like aggregate
principal amount of Registered Securities of other authorized denominations of
such series. Registered Securities to be exchanged shall be surrendered at the
office or agency to be designated and maintained by the Corporation for such
purpose in the Borough of Manhattan, The City of New York, in accordance with
the provisions of Section 4.02, and the Corporation shall execute and register
and the Trustee shall authenticate and deliver in exchange therefor the
Registered Security or Registered Securities that the Holder making the
exchange shall been titled to receive.
If the Securities of any series are issued in both registered and
unregistered form, except as otherwise specified pursuant to section 2.01, at
the option of the Holder thereof, Unregistered Securities of any series may be
exchanged for Registered Securities of such series of any authorized
denominations and of a like aggregate principal amount, upon surrender of such
Unregistered Securities to be exchanged at the agency of the Corporation that
shall be maintained for such purpose in accordance with Section 4.02, with, in
the case of Unregistered Securities that are Coupon Securities, all unmatured
Coupons and all matured Coupons in default thereto appertaining. At the option
of the Holder thereof, if Unregistered Securities of any series are
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issued in more than one authorized denomination, except as otherwise specified
pursuant to Section 2.01, such Unregistered Securities may be exchanged for
Unregistered Securities of such series of other authorized denominations and of
a like aggregate principal amount, upon surrender of such Unregistered
Securities to be exchanged at the agency of the Corporation that shall be
maintained for such purpose in accordance with Section 4.02 or as specified
pursuant to Section 2.01, with, in the case of Unregistered Securities that are
Coupon Securities, all unmatured Coupons and all matured Coupons in default
thereto appertaining. Unless otherwise specified pursuant to Section 2.01,
Registered Securities of any series may not be exchanged for Unregistered
Securities of such series. Whenever any Securities are so surrendered for
exchange the Corporation shall execute, and the Trustee shall authenticate and
deliver, the Securities that the Holder making the exchange is entitled to
receive.
The Corporation or its designated agent (the "Security Registrar")
shall keep, at such office or agency, a Security Register (the "Security
Register") in which, subject to such reasonable regulations as it may prescribe,
the Corporation shall register Securities and shall register the transfer of
Registered Securities as provided in this Article Two. The Security Register
shall be in written form or in any other form capable of being converted into
written form within a reasonable time. At all reasonable times the Security
Register shall be open for inspection by the Trustee. Upon due presentment for
registration of transfer of any Registered Security of a particular series at
such office or agency, the Corporation shall execute and the Corporation or the
Security Registrar shall register and the Trustee shall authenticate and deliver
in the name of the transferee or transferees a new Registered Security or
Registered Securities of such series for an equal aggregate principal amount.
Unregistered Securities (except for any temporary bearer Securities)
and Coupons shall be transferable by delivery.
All Securities presented for registration of transfer or for exchange,
redemption or payment, as the case may be, shall (if so required by the
Corporation or the Trustee) be duly endorsed by, or be accompanied by, a written
instrument or instruments of transfer in form satisfactory to the Corporation
and the Trustee duly executed by the Holder or his, her or its attorney duly
authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Registered Securities, but the Corporation may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith.
The Corporation shall not be required to exchange or register a
transfer of (a) any Registered Securities of any series for a period of fifteen
days next preceding any selection of Registered Securities of such series to be
redeemed, or (b) any Security of any such series selected for redemption except
in the case of any such series to be redeemed in part, the portion thereof not
to be so redeemed.
Notwithstanding anything herein or in the terms of any series of
Securities to the contrary, neither the Corporation nor the Trustee (which shall
rely on an Officers' Certificate and
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an Opinion of Counsel) shall be required toexchange any Unregistered Security
for a Registered Security if such exchange would result in adverse Federal
income tax consequences to the Corporation (including the inability of the
Corporation to deduct from its income, as computed for Federal income tax
purposes, the interest payable on any Securities) under then applicable United
States Federal income tax laws.
SECTION 2.06. TEMPORARY SECURITIES. Pending the preparation of
definitive Securities of any series, the Corporation may execute and on receipt
of a Corporation Order the Trustee shall authenticate and deliver temporary
Securities of such series (printed or lithographed). Temporary Securities of any
series shall be issuable in any authorized denominations, and in the form
approved from time to time by or pursuant to a Board Resolution but with such
omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Corporation. Every temporary
Security shall be executed by the Corporation and authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with like
effect, as the definitive Securities. Without unnecessary delay the Corporation
shall execute and furnish definitive Securities of such series and thereupon any
or all temporary Registered Securities of such series may be surrendered in
exchange therefor without charge at the office or agency to be designated and
maintained by the Corporation for such purpose in the Borough of Manhattan, The
City of New York, in accordance with the provisions of Section 4.02 and in the
case of Unregistered Securities at any agency maintained by the Corporation for
such purpose as specified pursuant to Section 2.01, and the Trustee shall
authenticate and deliver in exchange for such temporary Securities an equal
aggregate principal amount of definitive Securities of the same series of
authorized denominations and in the case of such Securities that are Coupon
Securities, having attached thereto the appropriate Coupons. Until so exchanged
the temporary Securities of any series shall be entitled to the same benefits
under this Indenture as definitive Securities of such series. The provisions of
this Section 2.06 are subject to any restrictions or limitations on the issue
and delivery of temporary unregistered Securities of any series that may be
established pursuant to Section 2.01 (including any provision that Unregistered
Securities of such series initially be issued in the form of a single global
Unregistered Security to be delivered to a depositary or agency of the
Corporation located outside the United States and the procedures pursuant to
which definitive Unregistered Securities of such series would be issued in
exchange for such temporary global Unregistered Security).
SECTION 2.07. MUTILATED, DESTROYED, LOST OR STOLEN SECURITIES. In case
any temporary or definitive Security of any series or, in the case of a Coupon
Security, any Coupon appertaining thereto, shall become mutilated or be
destroyed, lost or stolen, the Corporation in the case of a mutilated Security
or Coupon shall, and in the case of a lost, stolen or destroyed Security or
Coupon may, in its discretion, execute, and upon receipt of a Corporation Order
the Trustee shall authenticate and deliver, a new Security of the same series as
the mutilated, destroyed, lost or stolen Security or, in the case of a Coupon
Security, a new Coupon Security of the same series as the mutilated, destroyed,
lost or stolen Coupon Security or, in the case of a Coupon, a new Coupon of the
same series as the Coupon Security to which such mutilated, destroyed, lost or
stolen Coupon appertains, bearing a number not contemporaneously outstanding, in
exchange and substitution for the mutilated Security, or in
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lieu of and in substitution for the Security so destroyed, lost or stolen or in
exchange for the Coupon Security to which such mutilated, destroyed, lost or
stolen Coupon appertains, with all appurtenant Coupons not destroyed, lost or
stolen. In every case the applicant for a substituted Security or Coupon shall
furnish to the Corporation and to the Trustee such security or indemnity as may
be required by them to save each of them harmless, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Corporation
and to the Trustee evidence to their satisfaction of the destruction, loss or
theft of such Security or Coupon, as the case may be, and of the ownership
thereof. Upon the issuance of any substituted Security or Coupon, the
Corporation may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses connected therewith and in addition a further sum not exceeding ten
dollars for each Security so issued in substitution. In case any Security or
Coupon which has matured or is about to mature shall become mutilated or be
destroyed, lost or stolen, the Corporation may, instead of issuing a substituted
Security, pay or authorize the payment of the same (without surrender thereof
except in the case of a mutilated Security or Coupon) if the applicant for such
payment shall furnish the corporation and the Trustee with such security or
indemnity as they may require to save them harmless and, in case of destruction
loss or theft, evidence to the satisfaction of the Corporation and the Trustee
of the destruction, loss or theft of such Security or Coupon and of the
ownership thereof.
Every substituted Security with, in the case of any such Security that
is a Coupon Security, its Coupons, issued pursuant to the provisions of this
Section by virtue of the fact that any Security or Coupon is destroyed, lost or
stolen shall, with respect to such Security or Coupon, constitute an additional
contractual obligation of the Corporation, whether or not the destroyed, lost or
stolen Security or Coupon 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 Securities, and the Coupons appertaining thereto, duly issued hereunder.
All Securities and any Coupons appertaining thereto 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 Securities and Coupons appertaining thereto and shall, to the extent
permitted by law, 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 2.08. CANCELLATION. All Securities surrendered for payment,
redemption, exchange or registration of transfer, and all Coupons surrendered
for payment as the case may be, shall, if surrendered to the Corporation or any
agent of the Corporation or of the Trustee, be delivered to the Trustee and
promptly cancelled by it or, if surrendered to the Trustee, be cancelled by it,
and no Securities or Coupons, shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Trustee
shall destroy cancelled Securities and Coupons and deliver a certificate of
destruction to the Corporation.
SECTION 2.09. COMPUTATION OF INTEREST. Except as otherwise specified as
contemplated by Section 2.01 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
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SECTION 2.10. SECURITIES IN GLOBAL FORM. If Securities of a series are
issuable in global form, as specified as contemplated by Section 2.01, then,
notwithstanding clause (9) of Section 2.01 and the provisions of Section 2.04,
such Global Security shall represent such of the outstanding Securities of such
series as shall be specified therein and may provide that it shall represent the
aggregate amount of outstanding Securities from time to time endorsed thereon
and that the aggregate amount of outstanding Securities represented thereby may
from time to time be reduced to reflect exchanges. Any endorsement of a Security
in global form to reflect the amount, or any increase or decrease in the amount,
of outstanding Securities represented thereby shall be made by the Trustee in
such manner and upon instructions given by such Person or Persons as shall be
specified therein or in the Corporation Order to be delivered to the Trustee
pursuant to Section 2.03 or Section 2.06. Subject to the provisions of Section
2.03 and, if applicable, Section 2.06, the Trustee shall deliver and redeliver
any Security in definitive global bearer form in the manner and upon written
instructions given by the Person or Persons specified therein or in the
applicable Corporation Order. If a Corporation Order pursuant to Section 2.03 or
2.06 has been, or simultaneously is, delivered, any instructions by the
Corporation with respect to endorsement or delivery or redelivery of a Security
in global form shall be in writing but need not comply with Section 14.04 and
need not be accompanied by an opinion of Counsel. The beneficial owner of a
Security represented by a definitive Global Security in bearer form may, upon no
less than 30 days written notice to the Trustee, given by the beneficial owner
through a Depository, exchange its interest in such definitive Global Security
for a definitive bearer Security or Securities, or a definitive Registered
Security or Securities, of any authorized denomination, subject to the rules and
regulations of such Depository and its members. No individual definitive bearer
Security will be delivered in or to the United States.
The provisions of the last sentence of the third to the last paragraph
of Section 2.03 shall apply to any Security represented by a Security in global
form if such Security was never issued and sold by the Corporation and the
Corporation delivers to the Trustee the Security in global form together with
written instructions (which need not comply with Section 14.04 and need not be
accompanied by an Opinion of Counsel) with regard to the reduction in the
principal amount of Securities represented thereby together with the written
statement contemplated by the last sentence of the third to the last paragraph
of Section 2.03.
Unless otherwise specified as contemplated by Section 2.01, payment of
principal of, and any premium and any interest on, any Security in definitive
global form shall be made to the Person or Persons specified therein.
SECTION 2.11. MEDIUM-TERM SECURITIES. Notwithstanding any contrary
provision herein, if all Securities of a series are not to be originally issued
at one time, it shall not be necessary to deliver the Corporation Order,
Officers' Certificate, supplemental indenture or Opinion of Counsel otherwise
required pursuant to Sections 2.01, 2.03, 2.06, and 14.04 at or prior to the
time of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
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An Officers' Certificate or supplemental indenture, delivered pursuant
to this Section 2.11 in the circumstances set forth in the preceding paragraph
may provide that Securities which are the subject thereof will be authenticated
and delivered by the Trustee on original issue from time to time upon the
written order of persons designated in such Officers' Certificate or
supplemental indenture and that such persons are authorized to determine,
consistent with such Officers' Certificate or any applicable supplemental
indenture such terms and conditions of said Securities as are specified in such
Officers' Certificate or supplemental indenture, provided that the foregoing
procedure is acceptable to the Trustee.
SECTION 2.12. CUSIP NUMBERS. The Corporation, 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
correctness 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 Corporation
will promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE THREE.
REDEMPTION OF SECURITIES.
SECTION 3.01. REDEMPTION OF SECURITIES; Applicability Of Article.
Redemption of Securities of any series as permitted or required by the terms
thereof shall be made in accordance with such terms and this Article; provided,
however, that if any provision of any series of Securities shall conflict with
any provision of this Article, the provision of such series of Securities shall
govern.
The notice date for a redemption of Securities shall mean the date on
which notice of such redemption is given in accordance with the provisions of
Section 3.02 hereof.
SECTION 3.02. NOTICE OF REDEMPTION; SELECTION OF SECURITIES. The
election of the Corporation to redeem any Securities shall be evidenced by an
Officers' Certificate. In case the Corporation shall desire to exercise the
right to redeem all, or, as the case may be, any part, of a series of Securities
pursuant to the terms and provisions applicable to such series, it shall fix a
date for redemption and shall mail a notice of such redemption at least thirty
and not more than sixty days prior to the date fixed for redemption to the
Holders of the Securities of such series that are Registered Securities to be
redeemed as a whole or in part, at their last addresses as the same appear on
the Security Register. Such mailing shall be by prepaid first class mail. Any
notice which is mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder shall have received
such notice. In any case, failure to give notice by mail, or any defect in the
notice to the Holder of any 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 Security of such series.
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Notice of redemption to the Holders of Unregistered Securities to be
redeemed as a whole or in part, who have filed their names and addresses with
the Trustee as described in Section 313(c) of the Trust Indenture Act of 1939,
shall be given by mailing notice of such redemption, by first class mail,
postage prepaid, at least thirty days and not more than sixty days prior to the
date fixed for redemption, to such Holders at such addresses as were so
furnished to the Trustee (and, in the case of any such notice given by the
Corporation, the Trustee shall make such information available to the
Corporation for such purpose). Notice of redemption to any other Holder of an
Unregistered Security of such series shall be published in an Authorized
Newspaper in the Borough of Manhattan, The City of New York and in an Authorized
Newspaper in London (and, if required by Section 4.04, in an Authorized
Newspaper in Luxembourg), in each case, once in each of two successive calendar
weeks, the first publication to be not less than thirty nor more than sixty days
prior to the date fixed for redemption. Any notice that is mailed in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not the Holder shall have received such notice. In any case, failure to give
notice by mail, or any defect in the notice to the Holder of any 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 Security of such
series.
Each such notice of redemption shall specify the provisions of such
Securities under which such redemption is made, that the conditions precedent,
if any, to such redemption have occurred, shall describe the same and the date
fixed for redemption, the redemption price at which such Securities are to be
redeemed, the Place of Payment, that payment will be made upon presentation and
surrender of such Securities and, in the case of Coupon Securities, of all
Coupons appertaining thereto maturing after the date fixed for redemption, that
interest and Additional Amounts, if any, accrued to the date fixed for
redemption will be paid as specified in said notice, and that on and after said
date interest, if any, thereon or on the portions thereof to be redeemed will
cease to accrue. If fewer than all of the Securities of a series are to be
redeemed any notice of redemption published in an Authorized Newspaper shall
specify the numbers of the Securities to be redeemed and, if applicable, the
CUSIP Numbers thereof. In case any Security 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 upon surrender of such Security, a new Security
or Securities in principal amount equal to the unredeemed portion thereof will
be issued of the same series.
At least one Business Day prior to the redemption date specified in the
notice of redemption given for Unregistered Securities as provided in this
Section and on or prior to the redemption date specified in the notice of
redemption given for all Securities other than Unregistered Securities, the
Corporation will deposit in trust with the Trustee or with one or more Paying
Agents an amount of money sufficient to redeem on the redemption date all the
Securities or portions of Securities so called for redemption at the appropriate
redemption price, together with interest, if any, and Additional Amounts, if
any, accrued to the date fixed for redemption. The Corporation will give the
Trustee notice of each redemption at least forty-five days prior to the date
fixed for redemption (unless a shorter notice is acceptable to the Trustee) as
to the aggregate principal amount of Securities to be redeemed.
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If fewer than all of the Securities of a series are to be redeemed, the
Trustee shall select, pro rata or by lot or in such other manner as it shall
deem reasonable and fair, the numbers of the Securities to be redeemed in whole
or in part.
SECTION 3.03. PAYMENT OF SECURITIES CALLED FOR REDEMPTION. If notice of
redemption has been given as above provided, the Securities or portions of
Securities with respect to which such notice has been given shall become due and
payable on the date and at the Place of Payment stated in such notice at the
applicable redemption price, together with interest, if any, and Additional
Amounts, if any, accrued to the date fixed for redemption, and on and after said
date (unless the Corporation shall default in the payment of such Securities at
the redemption price, together with interest, if any, and Additional Amounts, if
any, accrued to said date) interest on the Securities or portions of Securities
so called for redemption shall cease to accrue. On presentation and surrender of
such Securities subject to redemption at said Place of Payment in said notice
specified, the said Securities or the specified portions thereof shall be paid
and redeemed by the Corporation at the applicable redemption price, together
with interest, if any, and Additional Amounts, if any, accrued thereon to the
date fixed for redemption. Interest, if any, and Additional Amounts, if any,
maturing on or prior to the date fixed for redemption shall continue to be
payable (but without interest thereon unless the Corporation shall default in
payment thereof) in the case of Coupon Securities to the bearers of the Coupons
for such interest upon surrender thereof, and in the case of Registered
Securities to the Holders thereof registered as such on the Security Register on
the relevant record date subject to the terms and provisions of Section 2.04. At
the option of the Corporation payment may be made by check to (or to the order
of) the Holders of the Securities or other persons entitled thereto against
presentation and surrender of such Securities.
If any Coupon Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the date fixed for
redemption, the surrender of such missing Coupon or Coupons may be waived by the
Corporation and the Trustee, if there be furnished to each of them such security
or indemnity as they may require to save each of them harmless.
Upon presentation of any Security redeemed in part only, the
Corporation shall execute, and the Trustee shall authenticate and deliver to the
Holder thereof, at the expense of the Corporation, a new Security or Securities,
of authorized denominations, in aggregate principal amount equal to the
unredeemed portion of the Security so presented of the same series.
ARTICLE FOUR.
PARTICULAR COVENANTS OF THE CORPORATION.
SECTION 4.01. PAYMENT OF PRINCIPAL, PREMIUM, INTEREST AND ADDITIONAL
AMOUNTS. The Corporation shall duly and punctually pay or cause to be paid the
principal of (and premium, if any), interest, if any, and Additional Amounts, if
any, on each of the Securities at the place, at the respective times and in the
manner provided in the terms of
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the Securities and in this Indenture. The interest on Coupon Securities(together
with any Additional Amounts) shall be payable only upon presentation and
surrender of the several Coupons for such interest installments as are evidenced
thereby as they severally mature. The interest, if any, on any temporary bearer
securities (together with any Additional Amounts) shall be paid, as to the
installments of interest evidenced by Coupons attached thereto, if any, only
upon presentation and surrender thereof, and, as to the other installments of
interest, if any, only upon presentation of such Securities for notation thereon
of the payment of such interest. The interest on Registered Securities (together
with any Additional Amounts) shall be payable only to the Holders thereof and at
the option of the Corporation may be paid by (i) mailing checks for such
interest payable to or upon the order of such Holders at their last addresses as
they appear on the Security Register for such Securities or (ii) in the case of
Holders of U.S. $10,000,000 or more in aggregate principal amount of such
Registered Securities, by wire transfer of immediately available funds, but
only if the Trustee has received wire transfer instructions in writing not less
than 15 days prior to the applicable Interest Payment Date.
SECTION 4.02. OFFICES FOR NOTICES AND PAYMENTS, ETC. As long as any of
the Securities of a series remain outstanding, the Corporation shall designate
and maintain, in the Borough of Manhattan, The City of New York, an office or
agency where the Registered Securities of such series may be presented for
registration of transfer and for exchange as provided in this Indenture, an
office or agency where notices and demands to or upon the Corporation in respect
of the Securities of such series or of this Indenture may be served, and an
office or agency where the Securities of such series may be presented for
payment. The Corporation shall give to the Trustee notice of the location of
each such office or agency and of any change in the location thereof. In case
the Corporation shall fail to maintain any such office or agency in the Borough
of Manhattan, The City of New York, or shall fail to give such notice of the
location or of any change in the location thereof, presentations may be made
and notices and demands may be served at the corporate trust office of the
Trustee in the Borough of Manhattan, The City of New York, and the Corporation
hereby appoints the Trustee as its agent to receive all such presentations,
notices and demands.
If Unregistered Securities of any series are outstanding, the
Corporation shall maintain or cause the Trustee to maintain one or more agencies
in a city or cities located outside the United States (including any city in
which such an agency is required to be maintained under the rules of any
securities exchange on which the Securities of such series are listed) where
such Unregistered Securities, and Coupons, if any, appertaining thereto may be
presented for payment. No payment on any Unregistered Security or Coupon will be
made upon presentation of such Unregistered Security or Coupon at an agency of
the Corporation within the United States nor will any payment be made by
transfer to an account in, or by mail to an address in, the United States,
except, at the option of the Corporation, if the Corporation shall have
determined that, pursuant to applicable United States laws and regulations then
in effect such payment can be made without adverse tax consequences to the
Corporation. Notwithstanding the foregoing, payments in U.S. Dollars with
respect to Unregistered Securities of any series and Coupons appertaining
thereto that are payable in U.S. Dollars may be made at an agency of the
Corporation maintained in the Borough of Manhattan, The City of New York if such
payment in U.S. Dollars at each agency maintained by the Corporation outside the
United States for payment
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on such Unregistered Securities is illegal or is effectively precluded by
exchange controls or other similar restrictions.
The Corporation hereby initially designates The First National Bank of
Chicago, located at its Corporate Trust Office, as the Security Registrar and as
the office or agency of the Corporation in the Borough of Manhattan, The City of
New York, where the Securities may be presented for payment and, in the case of
Registered Securities, for registration of transfer and for exchange as in this
Indenture provided and where notices and demands to or upon the Corporation in
respect of the Securities of any series or of this Indenture may be served.
SECTION 4.03. PROVISIONS AS TO PAYING AGENT. (a) Whenever the
Corporation shall appoint a paying agent other than the Trustee with respect to
the Securities of any series, it will cause such paying agent 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:
(1) that it will hold sums held by it as such agent for the
payment of the principal of (and premium, if any), interest, if any, or
Additional Amounts, if any, on the Securities of such series in trust for the
benefit of the Holders of the Securities of such series, or Coupons appertaining
thereto, as the case may be, entitled thereto and will notify the Trustee of the
receipt of sums to be so held,
(2) that it will give the Trustee notice of any failure by the
Corporation (or by any other obligor on the Securities of such series) to make a
payment of the principal of (or premium, if any), interest, if any, or
Additional Amounts, if any, on the Securities of such series when the same shall
be due and payable, and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such paying agent.
(b) If the Corporation shall act as its own paying agent, it will, on
or before each due date of the principal of (and premium, if any), interest, if
any, or Additional Amounts, if any, on the Securities of any series set aside,
segregate and hold in trust for the benefit of the Holders of the Securities of
such series entitled thereto a sum sufficient to pay such principal (and premium
if any), interest, if any, or Additional Amounts, if any, so becoming due. The
Corporation will promptly notify the Trustee of any failure to take such action.
(c) Anything in this Section to the contrary notwithstanding, the
Corporation may, at any time, for the purpose of obtaining a satisfaction and
discharge with respect to one or more or all series of Securities hereunder, or
for any other reason, pay or cause to be paid to the Trustee all sums held in
trust for such series by it or any paying agent hereunder as required by this
Section, such sums to be held by the Trustee upon the trusts herein contained.
(d) Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 12.04 and 12.05.
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SECTION 4.04. LUXEMBOURG PUBLICATIONS. In the event of the publication
of any notice pursuant to Section 3.02, 6.07, 7.10, 7.11, 9.02, 10.02 or 12.05,
the party making such publication shall also, to the extent that notice is
required so to be given to Holders of Securities of a series by applicable
Luxembourg law or stock exchange regulation, make a similar publication the
same number of times in Luxembourg.
SECTION 4.05. STATEMENT BY OFFICERS AS TO DEFAULT. The Corporation shall
deliver to the Trustee, on or before a date not more than four months after the
end of each fiscal year of the Corporation (which, on the date of execution
hereof, ends on December 31) ending after the date hereof, commencing with the
fiscal year ended in 1999, an Officers' Certificate, stating whether or not to
the best knowledge of the signers thereof the Corporation is in default in the
performance or observance of any of the terms, provisions and conditions of this
Indenture to be performed or observed by it and, if the Corporation shall be in
default, specifying all such defaults and the nature thereof of which they may
have knowledge.
SECTION 4.06. LIMITATIONS ON LIENS. For the benefit of the Securities,
the Corporation shall not, nor shall it permit any Manufacturing Subsidiary to,
issue or assume any Debt secured by a Mortgage upon any Domestic Manufacturing
Property of the Corporation or of any Manufacturing Subsidiary or upon any
shares of stock or indebtedness of any Manufacturing Subsidiary (whether such
Domestic Manufacturing Property, shares of stock or indebtedness are now owned
or hereafter acquired) without in any such case effectively providing
concurrently with the issuance or assumption of any such Debt that the
Securities (together with, if the Corporation shall so determine, any other
indebtedness of the Corporation or such Manufacturing Subsidiary ranking equally
with the Securities and then existing or thereafter created) shall be secured
equally and ratably with such Debt, unless the aggregate amount of Debt issued
or assumed and so secured by Mortgages, together with (i) all other Debt of the
Corporation and its Manufacturing Subsidiaries which (if originally issued or
assumed at such time) would otherwise be subject to the foregoing restrictions,
but not including Debt permitted to be secured under clauses (i) through (v) of
the immediately following paragraph and not including Permitted Receivables
Financings, and (ii) all Attributable Debt of the Company and its Manufacturing
Subsidiaries in respect of sale and lease-back transactions, does not at the
time exceed 15% of Consolidated Net Tangible Assets as shown on the audited
consolidated financial statements for the most recently completed fiscal year.
The above restrictions shall not apply to: (i) Mortgages on property,
shares of stock or indebtedness of any entity existing at the time (a) such
entity becomes a Manufacturing Subsidiary or (b) of a sale, lease or other
disposition of all or substantially all of the properties of the entity to the
Corporation or a Manufacturing Subsidiary; (ii) Mortgages on property existing
at the time of acquisition of such property by the Corporation or a
Manufacturing Subsidiary, or Mortgages to secure the payment of all or any part
of the purchase price of such property upon the acquisition of such property by
the Corporation or a Manufacturing Subsidiary or to secure any Debt incurred
prior to, at the time of, or within 180 days after, the later of the date of
acquisition of such property and the date such property is placed in service,
for the purpose of financing all or any part of the purchase price thereof, or
Mortgages to secure any Debt incurred
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for the purpose of financing the cost to the Corporation or a Manufacturing
Subsidiary of improvements to such acquired property; (iii) Mortgages securing
Debt of a Manufacturing Subsidiary owing to the Corporation or to another
Subsidiary; (iv) Mortgages on property of the Corporation or a Manufacturing
Subsidiary in favor of the United States of America or any State thereof, or any
department, agency or instrumentality or political subdivision of the United
States of America or any State thereof, or in favor of any other country, or any
political subdivision thereof, in connection with financing arrangements between
the Corporation or a Manufacturing Subsidiary and any of the foregoing
governmental bodies or agencies, to the extent that Mortgages are required by
the governmental programs under which those financing arrangements are made, to
secure partial, progress, advance or other payments pursuant to any contract or
statute or to secure any indebtedness incurred for the purpose of financing all
or any part of the purchase price or the cost of construction of the property
subject to such Mortgages or (v) any extension, renewal or replacement (or
successive extensions, renewals or replacements) in whole or in part, of any
Mortgage referred to in the foregoing clauses (i) to (v), inclusively; provided
however, that the principal amount of Debt secured thereby shall not exceed the
principal amount of Debt so secured at the time of such extension, renewal or
replacement and that such extension, renewal or replacement shall be limited to
all or a part of the property that secured the Mortgage so extended, renewed or
replaced (plus improvements on such property).
SECTION 4.07. LIMITATION ON SALE AND LEASE-BACK. For the benefit of the
Holders of the Securities, the Corporation shall not, nor shall it permit any
Manufacturing Subsidiary to, enter into any arrangement with any person
providing for the leasing by the Corporation or any Manufacturing Subsidiary of
any Domestic Manufacturing Property owned by the Corporation or by any
Manufacturing Subsidiary on the date that the Securities are originally issued
(except for temporary leases for a term of not more than three years and except
for leases between the Corporation and a Manufacturing Subsidiary or between
Manufacturing Subsidiaries), which property has been or is to be sold or
transferred by the Corporation or such Manufacturing Subsidiary to such person,
unless either (i) the Corporation or such Manufacturing Subsidiary would be
entitled, pursuant to the provisions of the covenant on limitation on liens
described in Section 4.06, to issue, assume, extend, renew or replace Debt
secured by a Mortgage upon such Domestic Manufacturing Property equal in amount
to the Attributable Debt in respect of such arrangement without equally and
ratably securing the Securities; provided, however, that from and after the date
on which such arrangement becomes effective the Attributable Debt in respect of
such arrangement shall be deemed for all purposes under the covenant on
limitation on liens described in Section 4.06 and this covenant on limitation on
sale and lease-back to be Debt subject to the provisions of such covenant on
limitation on liens (which provisions include the exceptions set forth in
clauses (i) through (v) of such covenant), or (ii) the Corporation shall apply
an amount in cash equal to the Attributable Debt in respect of such arrangement
to the retirement (other than any mandatory retirement or by way of payment at
maturity), within 180 days of the effective date of any such arrangement, of
Debt of the Corporation or any Manufacturing Subsidiary (other than Debt owned
by the Corporation or any Manufacturing Subsidiary) which by its terms matures
at, or is extendible or renewable at the option of the obligor to, a date more
than twelve months after the date of the creation of such Debt.
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SECTION 4.08. DEFINITIONS APPLICABLE TO SECTIONS 4.06 AND 4.07. The
following definitions shall be applicable to the covenants contained in
Sections 4.06 and 4.07 hereof:
(a) "Attributable Debt" means, at the time of determination as to any
lease, the present value (discounted at the actual rate, if stated,
or, if no rate is stated, the implicit rate of interest of such lease
transaction as determined by the Chairman, President, any Vice
Chairman, any Vice President, the Treasurer or any Assistant Treasurer
of the Corporation), calculated using the interval of scheduled rental
payments under such lease, of the obligation of the lessee for net
rental payments during the remaining term of such lease (excluding any
subsequent renewal or other extension options held by the lessee). The
term "net rental payments" means, with respect to any lease for any
period, the sum of the rental and other payments required to be paid
in such period by the lessee thereunder, but not including any amounts
required to be paid by such lessee (whether or not designated as
rental or additional rental) on account of maintenance and repairs,
insurance, taxes, assessments, water rates, indemnities or similar
charges required to be paid by such lessee thereunder or any amounts
required to be paid by such lessee thereunder contingent upon the
amount of sales, earnings or profits or of maintenance and repairs,
insurance, taxes, assessments, water rates, indemnities or similar
charges; provided, however, that, in the case of any lease which is
terminable by the lessee upon the payment of a penalty in an amount
which is less than the total discounted net rental payments required
to be paid from the later of the first date upon which such lease may
be so terminated and the date of the determination of net rental
payments, "net rental payments" shall include the then current amount
of such penalty from the later of such two dates, and shall exclude
the rental payments relating to the remaining period of the lease
commencing with the later of such two dates.
(b) "Consolidated Net Tangible Assets" means, as calculated in
accordance with GAAP, at any date, all amounts that would be set forth
opposite the caption "total assets" (or any like caption) on a
consolidated balance sheet of the Company and its consolidated
Subsidiaries less (i) all current liabilities and (ii) goodwill, trade
names, patents, unamortized debt discount, organization expenses and
other like intangibles of the Corporation and its consolidated
Subsidiaries.
(c) "Debt" means notes, bonds, debentures or other similar evidences
of indebtedness for money borrowed.
(d) "Domestic Manufacturing Property" means any manufacturing plant or
facility owned by the Corporation or any Manufacturing Subsidiary
which is located within the continental United States of America and,
in the opinion of the Board of Directors, is of material importance to
the total business conducted by the Corporation and its consolidated
affiliates as an entity.
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(e) "GAAP" means generally accepted accounting principles in the
United States of America as in effect from time to time set forth in
the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and the
statements and pronouncements of the Financial Accounting Standards
Board, or in such other statements by an successor entity as may be in
general use by significant segments of the accounting professions,
which are applicable to the circumstances as of the date of
determination.
(f) "Manufacturing Subsidiary" means any Subsidiary (A) substantially
all the property of which is located within the continental United
States of America, (B) that owns a Domestic Manufacturing Property and
(C) in which the Corporation's investment, direct or indirect and
whether in the form of equity, debt, advances or otherwise, is in
excess of U.S. $1 billion as shown on the books of the Corporation as
of the end of the fiscal year immediately preceding the date of
determination; provided, however, that "Manufacturing Subsidiary"
shall not include any Subsidiary that is principally engaged in
leasing or in financing installment receivables or otherwise providing
financial or insurance services to the Corporation or others or that
is principally engaged in financing the Corporation's operations
outside the continental United States of America.
(g) "Mortgage" means any mortgage, pledge, lien, security interest,
conditional sale or other title retention agreement or other similar
encumbrance.
(h) "Non-Recourse Debt" means all Debt which, in accordance with GAAP,
is not required to be recognized on a consolidated balance sheet of
the Corporation as a liability.
(i) "Permitted Receivables Financings" means, at any date of
determination, the aggregate amount of any Non-Recourse Debt
outstanding on such date relating to securitizations or other similar
off-balance sheet financings of accounts receivable of the Corporation
or any of its Subsidiaries.
ARTICLE FIVE.
SECURITYHOLDER LISTS AND REPORTS BY THE
CORPORATION AND THE TRUSTEE.
SECTION 5.01. SECURITYHOLDER LISTS. The Corporation covenants and
agrees that it will furnish or cause to be furnished to the Trustee with respect
to the Securities of each series:
(a) semiannually, not later than each Interest Payment Date (in the
case of any series having semiannual Interest Payment Dates) or not later than
the dates determined pursuant to Section 2.01 (in the case of any series not
having semiannual Interest Payment Dates) a list, in
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such form as the Trustee may reasonably require, of the names and addresses of
the Holders of Securities of such series as of the Regular Record Date (or as of
such other date as may be determined pursuant to Section 2.01 for such series)
therefor, and
(b) at such other times as the Trustee may request in writing within
thirty days after receipt by the Corporation of any such request, a list in such
form as the Trustee may reasonably require of the names and addresses of the
Holders of Securities of a particular series specified by the Trustee as of a
date not more than fifteen days prior to the time such information is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar any such list shall exclude names and addresses received by the
Trustee in its capacity as Security Registrar, and if and so long as all of the
Securities of any series are Registered Securities, such list shall not be
required to be furnished.
SECTION 5.02. PRESERVATION AND DISCLOSURE OF LISTS. (a) The Trustee
shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the Holders of each series of
Securities (i) contained in the most recent list furnished to it as provided in
Section 5.01, (ii) received by the Trustee in its capacity as Security Registrar
or Paying Agent, or (iii) filed with it within the preceding two years pursuant
to Section 313(c) of the Trust Indenture Act of 1939. The Trustee may destroy
any list furnished to it as provided in Section 5.01 upon receipt of a new list
so furnished.
(b) In case three or more Holders of Securities (hereinafter referred
to as "applicants") apply in writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a Security of such series
for a period of at least six months preceding the date of such application, and
such application states that the applicants desire to communicate with other
Holders of Securities of a particular series (in which case the applicants must
hold Securities of such series) or with Holders of all Securities with respect
to their rights under this Indenture or under such Securities and it is
accompanied by a copy of the form of proxy or other communication that such
applicants propose to transmit, then the Trustee shall, within five business
days after the receipt of such application, at its election, either:
(1) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section, or
(2) inform such applicants as to the approximate number of
Holders of Securities of such series or all Securities, as the case may be,
whose names and addresses appear in the information preserved at the time by the
Trustee, in accordance with the provisions of subsection (a) of this Section,
and as to the approximate cost of mailing to such Securityholders the form of
proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of such series or all Securities, as the case
may be, whose name and address appear in the information preserved at the time
by the Trustee in accordance with the provisions of subsection (a) of this
Section, a copy of the form of proxy or other communication that is specified in
such request, with reasonable
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promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Trustee shall mail to such
applicants and file with the Securities and Exchange Commission, together with a
copy of the material to be mailed, a written statement to the effect that, in
the opinion of the Trustee, such mailing would be contrary to the best interests
of the Holders of Securities of such series orall Securities, as the case may
be, or would be in violation of applicable law. Such written statement shall
specify the basis of such opinion. If said Commission, after opportunity for
appearing upon the objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or if, after the entry
of an order sustaining one or more of such objections, said Commission shall
find, after notice and opportunity for hearing, that all the objections so
sustained have been met, and shall enter an order so declaring, the Trustee
shall mail copies of such material to all such Holders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Each and every Holder of Securities, by receiving and holding the
same, agrees with the Corporation and the Trustee that neither the Corporation
nor the Trustee nor any agent of the Corporation or of the Trustee shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders of Securities in accordance with the provisions of
subsection (b) of this Section, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under said subsection
(b).
SECTION 5.03. REPORTS BY THE CORPORATION. The Corporation covenants:
(a) to file with the Trustee within fifteen days after the Corporation
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 Corporation may be
required to file with said Commission pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934; or, if the Corporation is not required to
file information, documents or reports pursuant to either of such sections, then
to file with the Trustee 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 Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations.
(b) to file with the Trustee 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 Corporation with the conditions and covenants
provided for in this Indenture as may be required from time to time by such
rules and regulations;
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(c) to transmit by mail to all the Holders of Securities of each
series, as the names and addresses of such Holders appear on the Security
Register, within thirty days after the filing thereof with the Trustee, such
summaries of any information, documents and reports required to be filed by the
Corporation with respect to each such series pursuant to subsections (a) and (b)
of this Section as may be required by rules and regulations prescribed from time
to time by the Securities and Exchange Commission; and
(d) If Unregistered Securities of any series are outstanding, to file
with the listing agent of the Corporation with respect to such series such
documents and reports of the Corporation as may be required from time to time by
the rules and regulations of any stock exchange on which such Unregistered
Securities are listed.
SECTION 5.04. REPORTS BY THE TRUSTEE. (a) On or before May 15, 1999 and
on or before May 15 of each year thereafter, so long as any Securities of any
series are outstanding hereunder, the Trustee shall transmit to the Holders of
Securities of such series, in the manner provided by Section 313(c) of the Trust
Indenture Act of 1939, a brief report dated as of the preceding February 15, as
may be required by Sections 313(a) and (b) of the Trust Indenture Act of 1939.
(b) A copy of each such report shall, at the time of such transmission
to Holders of Securities of a particular series, be filed by the Trustee with
each stock exchange upon which the Securities of such series are listed and also
with the Securities and Exchange Commission. The Corporation agrees to notify
the Trustee when and as the Securities of any series become listed on any stock
exchange.
ARTICLE SIX.
REMEDIES ON DEFAULT.
SECTION 6.01. EVENTS OF DEFAULT. In case one or more of the following
Events of Default with respect to a particular series of Securities shall have
occurred and be continuing, that is to say:
(a) default in the payment of the principal of (or premium, if any, on)
any of the Securities of such series as and when the same shall become due and
payable either at maturity, upon redemption, by declaration or otherwise; or
(b) default in the payment of any installment of interest, if any, or
in the payment of any Additional Amounts upon any of the Securities of such
series as and when the same shall become due and payable, and continuance of
such default for a period of thirty days after written notice from the Trustee;
or
(c) failure on the part of the Corporation duly to observe or perform
any other of the covenants or agreements on the part of the Corporation
applicable to such series of the Securities
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or contained in this Indenture for a period of ninety days after the date on
which written notice of such failure, requiring the Corporation to remedy the
same, shall have been given to the Corporation by the Trustee, or to the
Corporation and the Trustee by the Holders of at least twenty-five percent in
aggregate principal amount of the Securities of such series at the time
outstanding; or
(d) default by the Corporation or any Significant Subsidiary in any
payment of $25,000,000 or more of principal of or interest on any Debt or in the
payment of $25,000,000 or more on account of any guarantee in respect of Debt,
beyond any period of grace that may be provided in the instrument or agreement
under which such Debt or guarantee was created.
(e) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Corporation in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appoint a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Corporation or for any substantial
part of its property, or ordering the winding-up or liquidation of its affairs,
and such decree or order shall remain unstayed, undismissed and unbonded and in
effect for a period of ninety days; or
(f) the Corporation shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or shall consent to the entry of an order for relief in an involuntary
case under any such law, or shall consent to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator
(or similar official) of the Corporation or for a substantial part of its
property, or shall make any general assignment for the benefit of creditors;
then if an Event of Default described in clause (a), (b), (c) or (d) shall have
occurred and be continuing, and in each and every such case, unless the
principal amount of all the Securities of such series shall have already become
due and payable, either the Trustee or the Holders of not less than twenty-five
percent in aggregate principal amount of the Securities of all series affected
thereby then outstanding hereunder, by notice in writing to the Corporation (and
to the Trustee if given by Holders of such Securities) may declare the principal
amount of all the Securities (or, with respect to Original Issue Discount
Securities, such lesser amount as may be specified in the terms of such
Securities) of the series affected thereby to be due and payable immediately,
and upon any such declaration the same shall become and shall be immediately due
and payable, any provision of this Indenture or the Securities of such series to
the contrary notwithstanding, or, if an Event of Default described in clause (e)
or (f) shall have occurred and be continuing, and in each and every such case,
either the Trustee or the Holders of not less than twenty-five percent in
aggregate principal amount of all the Securities then outstanding hereunder
(voting as one class), by notice in writing to the Corporation (and to the
Trustee if given by Holders of securities), may declare the principal of all the
Securities not already due and payable (or, with respect to Original Issue
Discount Securities, such lesser amount as may be specified in the terms of such
Securities) to be due and payable immediately, and upon any such declaration the
same shall become and shall be immediately due and payable, any provision in
this Indenture or in the Securities to the contrary notwithstanding. The
foregoing provisions, however, are subject to the conditions that if, at any
time after the principal of the Securities of any one or more or all series, as
the case
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may be, shall have been so declared due and payable, and before anyjudgment or
decree for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Corporation shall pay or shall deposit with the
Trustee a sum sufficient to pay all matured installments of interest, if any,
and all Additional Amounts, if any, due upon all the Securities of such
series or of all the Securities, as the case may be, and the principal of (and
premium, if any, on) all Securities of such series or of all the Securities, as
the case may be (or, with respect to Original Issue Discount Securities, such
lesser amount as may be specified in the terms of such Securities), which shall
have become due otherwise than by acceleration (with interest, if any, upon such
principal and premium, if any, and, to the extent that payment of such interest
is enforceable under applicable law, on overdue installments of interest and
Additional Amounts, if any, at the same rate as the rate of interest specified
in the Securities of such series, as the case may be (or, with respect to
Original Issue Discount Securities, at the rate specified in the terms of such
Securities for interest on overdue principal thereof upon maturity, redemption
or acceleration of such series, as the case may be), to the date of such payment
or deposit), and such amount as shall be payable to the Trustee pursuant to
Section 7.06, and any and all defaults under the Indenture shall have been
remedied, then and in every such case the Holders of a majority in aggregate
principal amount of the Securities of such series (or of all the Securities, as
the case may be) then outstanding, by written notice to the Corporation and to
the Trustee, may waive all defaults with respect to that series or with respect
to all Securities , as the case may be, and rescind and annul such declaration
and its consequences; but no such waiver or rescission and annulment shall
extend to or shall affect any subsequent default or shall impair any right
consequent thereon. If the principal of all Securities shall have been declared
to be payable pursuant to this Section 6.01, in determining whether the Holders
of a majority in aggregate principal amount thereof have waived all defaults and
rescinded and annulled such declaration, all series of Securities shall be
treated as a single class and the principal amount of Original Issue Discount
Securities shall be deemed to be the amount declared payable under the terms
applicable to such Original Issue Discount Securities.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission and annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Corporation, Trustee and the Holders of Securities, as the case may be, shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Corporation, the Trustee and the Holders of
Securities, as the case may be, shall continue as though no such proceedings had
been taken.
SECTION 6.02. PAYMENT OF SECURITIES ON DEFAULT; SUIT THEREFOR. The
Corporation covenants that (1) in case default shall be made in the payment of
any installment of interest, if any, on any of the Securities of any series or
any Additional Amounts payable in respect of any of the Securities of any series
, as and when the same shall become due and payable, and such default shall have
continued for a period of thirty days or (2) in case default shall be made in
the payment of the principal of (or premium, if any, on) any of the Securities
of any series, as and when the same shall have become due and payable, whether
upon maturity of such series or upon redemption or upon declaration or
otherwise, then upon demand of the Trustee, the Corporation shall pay to the
Trustee, for the benefit of the Holders of the
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Securities of such series, and the Coupons, if any, appertaining to such
Securities, the whole amount that then shall have become due and payable on all
such Securities of such series and such Coupons, for principal ( and premium, if
any) or interest, if any, or Additional Amounts, if any as the case may be, with
interest upon the overdue principal(and premium, if any) and (to the extent that
payment of such interest is enforceable under applicable law) upon overdue
installments of interest, if any, and Additional Amounts, if any, at the same
rate as the rate of interest specified in the Securities of such series (or,
with respect to Original Issue Discount Securities, at the rate specified in
the terms of such Securities for interest on overdue principal thereof upon
maturity, redemption or acceleration); and, in addition thereto, such further
amounts as shall be payable pursuant to Section 7.06.
In case the Corporation shall fail forthwith to pay such amounts upon
such demand, 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, and may prosecute
any such action or proceedings to judgment or final decree, and may enforce any
such judgment or final decree against the Corporation or other obligor upon such
Securities and collect in the manner provided by law out of the property of the
Corporation or other obligor upon such 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 Corporation or any other obligor upon Securities of
any series under Title 11 of the United States Code or any other applicable law,
or in case a receiver or trustee shall have been appointed for the property of
the Corporation or such other obligor, or in case of any other judicial
proceedings relative to the Corporation or such other obligor, or to the
creditors or property of the Corporation or such other obligor, the Trustee,
irrespective of whether the principal of the Securities of such 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, 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 (or, with respect to Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of that
series), and premium, if any, interest, if any, and Additional Amounts, if any,
owing and unpaid in respect of the 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 under Section 7.06 and of the Holders of the Securities
and Coupons of such series allowed in any such judicial proceedings relative to
the Corporation or other obligor upon the Securities of such series, or to the
creditors or property of the Corporation or such other obligor, 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 the
Securityholders of such series and of the Trustee on their behalf; and any
receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the Holders of the Securities and Coupons of such series
to make payments to the Trustee and, in the event that the Trustee shall consent
to the making of payments directly to the Securityholders of such series, to pay
to the Trustee such amount as shall be sufficient to cover reasonable
compensation to the Trustee, its agents,
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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.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities or Coupons appertaining to such 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 and as trustee of an express trust, and any recovery of judgment
shall be for the ratable benefit of the Holders of the Securities or Coupons
appertaining thereto.
In case of a 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
collected by the Trustee pursuant to Section 6.02 shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal (or premium, if any) or
interest, if any, upon presentation of the several Securities and Coupons in
respect of which moneys have been collected, and stamping thereon the payment,
if only partially paid, and upon surrender thereof, if fully paid:
FIRST: To the payment of the amounts payable to the Trustee pursuant
to Section 7.06;
SECOND: In case the principal of the Securities in respect of which
moneys have been collected shall not have become due, to the payment of
interest, if any, and Additional Amounts, if any, on the 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 and Additional Amounts, if any, at the
same rate as the rate of interest, if any, specified in the Securities of such
series (or, with respect to Original Issue Discount Securities, at the rate
specified in the terms of such Securities for interest on overdue principal
thereof upon maturity, redemption or acceleration), such payments to be made
ratably to the persons entitled thereto, without discrimination or preference;
and
THIRD: In case the principal of the Securities in respect of which
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 Securities of
such series for principal (and premium, if
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any), interest, if any, and Additional Amounts, if any, and (to the extent that
such interest has been collected by the Trustee) upon overdue installments of
interest, if any, and Additional Amounts, if any, at the same rate as the rate
of interest specified in the Securities of such series (or, with respect to
Original Issue Discount Securities, at the rate specified in the terms of such
Securities for interest on overdue principal thereof upon maturity, redemption
or acceleration); and in case such moneys shall be insufficient to pay in full
the whole amount so due and unpaid upon the Securities of such series, then to
the payment of such principal (and premium, if any), interest, if any, and
Additional Amounts, if any, without preference or priority of principal (and
premium, if any), over interest, if any, and Additional Amounts, if any, or of
interest, if any, and Additional Amounts, if any, over principal (and premium,
if any), or of any installment of interest, if any, or Additional Amounts, if
any, over any other installment of interest, if any, or Additional Amounts, if
any, or of any Security of such series over any other Security of such series,
ratably to the aggregate of such principal (and premium, if any), and accrued
and unpaid interest, if any, and Additional Amounts, if any.
SECTION 6.04. PROCEEDINGS BY SECURITYHOLDERS. No Holder of any Security
of any series or of any Coupon appertaining thereto shall have any right by
virtue or by availing of any provision of this Indenture to institute any
action or proceedings 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 default and of
the continuance thereof, as hereinbefore provided, and unless also the Holders
of not less than twenty-five percent in aggregate principal amount of the
Securities of such series then outstanding or, in the case of any Event of
Default described in clause (d) or (e) of Section 6.01, twenty-five per cent in
aggregate principal amount of all the Securities at the time outstanding
(voting as one class) shall have made written request upon the Trustee to
institute such action or proceedings 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 sixty 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 taker and Holder of every
Security with every other taker and Holder and the Trustee, that no one or more
Holders of Securities or Coupons appertaining to such Securities shall have any
right in any manner whatever by virtue of or by availing himself, herself or
itself of any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holder of Securities or Coupons appertaining to such
Securities, 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
Holders of Securities and Coupons. For the protection and enforcement of the
revisions of this Section, each and every Securityholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provisions in this Indenture, however, the
right of any Holder of any Security to receive payment of the principal of (and
premium, if any) and interest, if any, and Additional Amounts, if any, on such
Security or Coupon, on or after the respective due dates
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expressed in such Security or Coupon, or 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. With respect to original Issue
Discount Securities, principal shall mean such amount as shall be due and
payable as may be specified in the terms of such Securities.
SECTION 6.05. REMEDIES CUMULATIVE AND CONTINUING. All powers and
remedies given by this Article Six to the Trustee or to the Holders of
Securities or Coupons 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 of Securities or Coupons, 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 of any of the Securities or Coupons 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 Six or
by law to the Trustee or to the Holders of Securities or Coupons may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Holders of Securities or Coupons, as the case may be.
SECTION 6.06. DIRECTION OF PROCEEDINGS. The Holders of a majority in
aggregat principal amount of the Securities of any or all series affected
(voting as one class) 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;
provided, however, that (i) such direction shall not be in conflict with any
rule of law or with this Indenture, (ii) the Trustee may take any other action
deemed proper by the Trustee that is not inconsistent with such direction and
(iii) the Trustee shall have the right to decline to follow any such direction
if the Trustee, being advised by counsel, determines that the action or
proceedings so directed would be prejudicial to the Holders not joining in such
direction or may not lawfully be taken or if the Trustee in good faith by its
board of directors or executive committee or a trust committee of directors or
trustees and/or responsible officers shall determine that the action or
proceedings so directed would involve the Trustee in personal liability.
Prior to any declaration accelerating the maturity of the Securities of
any series, the holders of a majority in aggregate principal amount of the
Securities of such series at the time outstanding may on behalf of the Holders
of all of the Securities of such series waive any past default or Event of
Default hereunder and its consequences, except a default in the payment of
principal of (premium, if any) or interest, if any, or Additional Amounts, if
any, on any Securities of such series or in respect of a covenant or provision
hereof that may not be modified or amended without the consent of the Holders of
each outstanding Security of such series affected. Upon any such waiver the
Corporation, the Trustee and the Holders of the Securities of such 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 Event of Default
or impair any right consequent thereon. Whenever any default or Event of Default
hereunder shall have been waived as permitted by this Section 6.06, said default
or Event of Default shall for all purposes
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of the Securities of such series and this Indenture be deemed to have been cured
and to be not continuing.
SECTION 6.07. NOTICE OF DEFAULTS. The Trustee shall, within ninety days
after the occurrence of a default with respect to the Securities of any series,
give notice of all defaults with respect to that series known to the Trustee (i)
if any Unregistered Securities of that series are then outstanding, to the
Holders thereof, by publication at least once in an Authorized Newspaper in the
Borough Manhattan, The City of New York and at least once in an Authorized
Newspaper in London (and, if required by Section 4.04, at least once in an
Authorized Newspaper in Luxembourg), (ii) if any Unregistered Securities of that
series are then outstanding, to all Holders thereof who have filed their names
and addresses with the Trustee as described in Section 313(c) of the Trust
Indenture Act of 1939, by mailing such notice to such Holders at such addresses
and (iii) to all Holders of then outstanding Registered Securities of
that series, by mailing such notice to such Holders at their addresses as they
shall appear on the Security Register, unless in each case such defaults shall
have been cured before the mailing or publication of such notice (the term
"defaults" for the purpose of this Section being hereby defined to be the events
specified in Sections 6.01(a), (b), (c), (d) and (e) and any additional events
specified in the terms of any series of Securities pursuant to Section 2.01, not
including periods of grace, if any, provided for therein, and irrespective of
the giving of written notice specified in Section 6.01 (c) or in the terms of
any Securities established pursuant to Section 2.01); and provided that, except
in the case of default in the payment of the principal of (premium, if any),
interest, if any, or Additional Amounts, if any, on any of the Securities of
such series, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee, or a trust committee of
directors or responsible officers of the Trustee in good faith determines that
the withholding of such notice is in the interests of the Holders of the
Securities of such series.
SECTION 6.08. UNDERTAKING TO PAY COSTS. All parties to this Indenture
agree, and each Holder of any Security by his, her or its acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, is
any suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; provided that, the provisions of this Section shall not
apply to any suit instituted by the Trustee, to any suit instituted by any
Securityholders of any series, or group of such Securityholders, holding in the
aggregate more than ten percent in aggregate principal amount of all Securities
(voting as one class) or to any suit instituted by any Securityholders for the
enforcement of the payment of the principal of (or premium, if any), interest,
if any, or Additional Amounts, if any, on any Security on or after the due date
expressed in such Security.
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ARTICLE SEVEN.
CONCERNING THE TRUSTEE.
SECTION 7.01. DUTIES AND RESPONSIBILITIES OF TRUSTEE. The Trustee,
prior to the occurrence of an Event of Default of a particular series and after
the curing of all Events of Default of such series that 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 with respect to a
particular series has occurred (which has not been cured) 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 its 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 willful misconduct, except that:
(a) prior to the occurrence of an Event of Default with respect to a
particular series and after the curing of all Events of Default with respect to
such series that may have occurred:
(1) the duties and obligations of the Trustee with respect to such
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 as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the Trustee;
and
(2) in the absence of bad faith on 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;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a responsible officer or officers, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Holders of Securities pursuant to Section 6.06 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.
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No provision of this Indenture shall be construed as requiring the
Trustee to expend or risk its own funds or otherwise to 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.
SECTION 7.02. RELIANCE ON DOCUMENTS, OPINIONS, ETC. Subject to the
provisions of 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, consent, order, bond, debenture, note, Coupon
or other paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request, direction, order or demand of the Corporation
mentioned herein shall be sufficiently evidenced by an instrument signed in the
name of the Corporation by the Chairman of the Board of Directors or any Vice
Chairman of the Board of Directors or the President or any Vice President or the
Treasurer and by the Secretary or any Assistant Secretary or, if the other
signatory is other than the Treasurer, any Assistant Treasurer (unless other
evidence in respect thereof be herein specifically prescribed); and a Board
Resolution may be evidenced to the Trustee by a copy thereof certified by the
Secretary or any Assistant Secretary of the Corporation;
(c) the Trustee may consult with counsel and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect of
any action taken or suffered 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 Securityholders, pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses, and liabilities
which might be incurred therein or thereby;
(e) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the relevant books, records and
premises of the Corporation, personally or by agent or attorney;
(f) 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, provided, however, that the Trustee shall be responsible for any
misconduct or negligence on the part of any agent or attorney appointed by it
hereunder; and
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(g) the Trustee shall not be liable for any action taken by it in good
faith and believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture.
SECTION 7.03. NO RESPONSIBILITY FOR RECITALS, ETC. The recitals
contained herein and in the Securities, other than the Trustee's certificate of
authentication, shall be taken as the statements of the Corporation, 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 Securities, provided that the Trustee shall not be relieved of its duty
to authenticate Securities only as authorized by this Indenture. The Trustee
shall not be accountable for the use or application by the Corporation of
Securities or the proceeds thereof.
SECTION 7.04. OWNERSHIP OF SECURITIES OR COUPONS. The Trustee or any
agent of the Corporation or of the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Securities or Coupons with the same
rights it would have if it were not Trustee, or an agent of the Corporation or
of the Trustee.
SECTION 7.05. MONEYS TO BE HELD IN TRUST. Subject to the provisions of
Sections 12.04 and 12.05 hereof, all moneys received by the Trustee or any
paying agent 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. Neither the Trustee nor any
paying agent shall be under any liability for interest on any moneys received by
it hereunder except such as it may agree with the Corporation to pay thereon. 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 upon the written
order of the Corporation, signed by its Chairman of the Board of Directors or
any Vice Chairman of the Board of Directors or its President or any Vice
President or its Treasurer or any Assistant Treasurer.
SECTION 7.06. COMPENSATION AND EXPENSES OF TRUSTEE. The Corporation
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation, and, except as otherwise
expressly provided, the Corporation will pay or reimburse 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, expenses and disbursements of its
counsel and of all persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. If any
property other than cash shall at any time be subject to the lien of this
Indenture, 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 hereon. The Corporation also covenants to indemnify
the Trustee for, and to hold it harmless against, any loss, liability or
reasonable expense incurred without negligence or bad faith on the part of the
Trustee, arising out of or in connection with the acceptance or administration
of this trust, including the reasonable costs and expenses of defending itself
against any claim of liability in
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the premises. The obligations of the Corporation under this Section to
compensate the Trustee and to pay or reimburse the Trustee for reasonable
expenses, disbursements and advances shall constitute additional indebtedness
hereunder. Such additional indebtedness shall be secured by a lien prior to that
of the Securities upon all property and funds held or collected by the Trustee
as such, except funds held in trust for the benefit of the Holders of particular
Securities or Coupons.
SECTION 7.07. OFFICERS' CERTIFICATE AS EVIDENCE. Subject to the
provisions of 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 any action to be taken
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. CONFLICTING INTEREST OF TRUSTEE. The Trustee shall comply
with Section 310(b) of the Trust Indenture Act of 1939.
SECTION 7.09. ELIGIBILITY OF TRUSTEE. There shall at all times be a
trustee hereunder which shall be a corporation organized and doing business
under the laws of the United States or of any State or Territory thereof or of
the District of Columbia, which (a) is authorized under such laws to exercise
corporate trust powers and (b) is subject to supervision or examination by
Federal, State, Territorial or District of Columbia authority and (c) shall have
at all times a combined capital and surplus of not less than U.S. $50 million.
If such corporation publishes reports of condition at least annually, pursuant
to law, or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation at any time shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.10.
SECTION 7.10. RESIGNATION OR REMOVAL OF TRUSTEE. (a) The Trustee, or
any trustee or trustees hereafter appointed, may, upon sixty days written notice
to the Corporation, at any time resign with respect to one or more or all series
by giving written notice of resignation to the Corporation (i) if any
Unregistered Securities of a series affected are then outstanding, by giving
notice of such resignation to the Holders thereof, by publication at least once
in an Authorized Newspaper in London (and, if required by Section 4.04, at least
once in an Authorized Newspaper in Luxembourg), (ii) if any Unregistered
Securities of a series affected are then outstanding, by mailing notice of such
resignation to the Holders thereof who have filed their names and addresses with
the Trustee as described in Section 313(c) of the Trust Indenture Act of 1939 at
such addresses as were so furnished to the Trustee and (iii) by mailing notice
of such resignation to the Holders of then outstanding Registered Securities of
each series affected at their addresses as they shall appear on the Security
Register. Upon receiving such notice of resignation the Corporation shall
promptly appoint a successor trustee with respect to the
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applicable series by written instrument, in duplicate, executed by order of the
Board of Directors of the Corporation, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee. If no
successor trustee shall have been so appointed and have accepted appointment
within thirty days after the mailing of such notice of resignation to the
Securityholders, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Securityholder
who has been a bona fide Holder of a Security or Securities of the applicable
series for at least six months may, subject to the provisions of Section 6.08,
on behalf of himself, herself or itself and all others similarly situated,
petition any such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with Section 7.08 with
respect to any series of Securities after written request therefor by the
Corporation or by any Securityholder who has been a bona fide Holder of a
Security or Securities of such series for at least six months, or
(ii) the Trustee shall cease to be eligible in accordance with
the provision of Section 7.09 with respect to any series of Securities and shall
fail to resign after written request therefor by the Corporation or by any such
Securityholder, or
(iii) the Trustee shall become incapable of acting with
respect to any series of Securities, or shall be adjudged a bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, the Corporation may remove the Trustee with
respect to the applicable series of Securities and appoint a successor trustee
with respect to such series by written instrument, in duplicate, executed by
order of the Board of Directors of the Corporation, one copy of which instrument
shall be delivered to the Trustee so removed and one copy to the successor
trustee, or, subject to the provisions of Section 6.08, any Securityholder of
such series who has been a bona fide Holder of a Security or Securities of the
applicable series for at least six months may, on behalf of himself, herself or
itself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
trustee with respect to such series. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of all series (voting as one class) at the time outstanding may at
any time remove the Trustee with respect to Securities of all series and appoint
a successor trustee with respect to the Securities of all series.
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(d) Any resignation or removal of the Trustee and any appointment of a
successor trustee pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 7.11.
SECTION 7.11. ACCEPTANCE BY SUCCESSOR TRUSTEE. Any successor trustee
appointed as provided in Section 7.10 shall execute, acknowledge and deliver to
the Corporation and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal the predecessor
trustee with respect to all or any applicable series shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, duties and obligations with respect
to such series of its predecessor hereunder, with like effect as if originally
named as trustee herein; but, on the written request of the Corporation or of
the successor trustee, the trustee ceasing to act shall, upon payment of any
amounts then due it pursuant to the provisions of Section 7.06, execute and
deliver an instrument transferring to such successor trustee all the rights and
powers of the trustee so ceasing to act. Upon request of any such successor
trustee, the Corporation shall execute any and all instruments in writing in
order more fully and certainly to vest in and confirm to such successor trustee
all such rights and powers. Any trustee ceasing to act shall, nevertheless,
retain a lien upon all property or funds held or collected by such trustee to
secure any amounts then due it pursuant to the provisions of Section 7.06.
In case of the appointment hereunder of a successor trustee with
respect to the Securities of one or more (but not all) series, the Corporation,
the predecessor Trustee and each successor trustee with respect to the
Securities of any applicable series shall execute and deliver an indenture
supplemental hereto that shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the predecessor Trustee with respect to the Securities of any series as to
which the predecessor Trustee is not retiring shall continue to be vested in the
predecessor Trustee, and shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such trustees
co-trustees of the same trust and that each such trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such trustee.
No successor trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor trustee shall be
qualified under the provisions of Section 7.08 and eligible under the provisions
of Section 7.09.
Upon acceptance of appointment by a successor trustee as provided in
this Section, the Corporation shall give notice of the succession of such
trustee hereunder (a) if any Unregistered Securities of a series affected are
then outstanding, to the Holders thereof by publication of such notice at least
once in an Authorized Newspaper in the Borough of Manhattan, The City of New
York and at least once in an Authorized Newspaper in London (and, if required by
Section 4.04, at least once in an Authorized Newspaper in Luxembourg), (b) if
any Unregistered Securities of a series affected are then outstanding, to the
Holders thereof who have filed their names and addresses with the Trustee
pursuant to Section 313(c) of the Trust Indenture Act, by mailing such
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notice to such Holders at such addresses as were so furnished to the Trustee
(and the Trustee shall make such information available to the Corporation for
such purpose) and (c) to the Holders of Registered Securities of each series
affected, by mailing such notice to such Holders at their addresses as they
shall appear on the Security Register. If the Corporation fails to mail such
notice in the prescribed manner within ten days after the acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be so given at the expense of the Corporation.
SECTION 7.12. SUCCESSOR BY MERGER, ETC. Any corporation into which the
Trustee may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be qualified under the provisions of Section
7.08 and eligible under the provisions of Section 7.09, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
SECTION 7.13. LIMITATIONS ON RIGHTS OF TRUSTEE AS CREDITOR. The Trustee
shall comply with Section 311(a) of the Trust Indenture Act of 1939.
ARTICLE EIGHT.
CONCERNING THE SECURITYHOLDERS.
SECTION 8.01. ACTION BY SECURITYHOLDERS. Whenever in this Indenture it
is provided that the Holders of a specified percentage in aggregate principal
amount of the Securities of any or all series may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action), the fact that at the time of 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 Securityholders in person or by agent or proxy appointed in writing,
or (b) by the record of the Holders of Securities voting in favor thereof at any
meeting of Securityholders duly called and held in accordance with the
provisions of Article Nine, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of Securityholders.
In determining whether the Holders of a specified percentage in
aggregate principal amount of the Securities have taken any action (including
the making of any demand or request, the waiving of any notice, consent or
waiver or the taking of any other action), the principal amount of any Original
Issue Discount Security that may be counted in making such determination and
that shall be deemed to be outstanding for such purposes shall be equal to the
amount of the principal thereof that could be declared to be due and payable
upon an Event of Default pursuant to the terms of such Original Issue Discount
Security at the time the taking of such action is evidence to the Trustee.
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SECTION 8.02. PROOF OF EXECUTION BY SECURITYHOLDERS. Subject to the
provisions of Sections 7.01, 7.02 and 9.05, proof of the execution of any
instrument by a Securityholder or its agent or proxy shall be sufficient if made
in the following manner:
(a) In the case of Holders of Unregistered Securities, the fact and
date of the execution by any such person of any instrument may be proved by the
certificate of any notary public or other officer of any jurisdiction authorized
to take acknowledgments of deeds or administer oaths that the person executing
such instruments acknowledged to him the execution thereof or by an affidavit of
a witness to such execution sworn to before any such notary or other such
officer. Where such execution is by or on behalf of any legal entity other than
an individual, such certificate or affidavit shall also constitute sufficient
proof of the authority of the person executing the same. The fact of the holding
by any Holder of a Security of any series, and the identifying number of such
Security and the date of his holding the same, may be proved by the production
of such Security or by a certificate executed by any trust company, bank, banker
or recognized securities dealer wherever situated satisfactory to the Trustee,
if such certificate shall be deemed by the Trustee to be satisfactory. Each such
certificate shall be dated and shall state that on the date thereof a Security
of such series bearing a specified identifying number was deposited with or
exhibited to such trust company, bank, banker or recognized securities dealer by
the person named in such certificate. Any such certificate may be issued in
respect of one or more Securities of one or more series specified therein. The
holding by the person named in any such certificate of any Securities of any
series specified therein shall be presumed to continue for a period of one year
from the date of such certificate unless at the time of any determination of
such holding (1) another certificate bearing a later date issued in respect of
the same Securities shall be produced, or (2) the Security of such series
specified in such certificate shall be produced by some other person, or (3) the
Security of such series specified in such certificates shall have ceased to be
outstanding. Subject to Sections 7.01, 7.02 and 9.05, the fact and date of the
execution of any such instrument and the amount and numbers of Securities of any
series held by the person so executing such instrument and the amount and
numbers of any Security or Securities for such series may also be proven in
accordance with such reasonable rules and regulations as may be prescribed by
the Trustee for such series or in any other manner that the Trustee for such
series may deem sufficient.
(b) In the case of Registered Securities, the ownership of such
Securities shall be proved by the Security Register or by a certificate of the
Security Registrar.
SECTION 8.03. WHO ARE DEEMED ABSOLUTE OWNERS. The Corporation, the
Trustee, any paying agent, any transfer agent and any Security Registrar may
treat the Holder of any Unregistered Security and the Holder of any Coupon as
the absolute owner of such Unregistered Security or Coupon (whether or not such
Unregistered Security or Coupon shall be overdue) for the purpose of receiving
payment thereof or on account thereof and for all other purposes and neither the
Corporation, the Trustee, any paying agent, any transfer agent nor any Security
Registrar shall be affected by any notice to the contrary. The Corporation, the
Trustee, any paying agent, any transfer agent and any Security Registrar may,
subject to Section 2.04 hereof, treat the person in whose name a Registered
Security shall be registered upon the Security Register as the absolute owner of
such Registered Security (whether or not such
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Registered Security shall be overdue) for the purpose of receiving payment
thereof or on account thereof and for all other purposes and neither the
Corporation, the Trustee, any paying agent, any transfer agent nor any Security
Registrar shall be affected by any notice to the contrary.
SECTION 8.04. CORPORATION-OWNED SECURITIES DISREGARDED. In determining
whether the Holders of the required aggregate principal amount of Securities
have concurred in any direction, consent or waiver under this Indenture,
Securities that are owned by the Corporation or by any person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Corporation, shall be disregarded and deemed not to be
outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on any
such direction, consent or waiver only Securities that the Trustee knows are so
owned shall be disregarded. Securities so owned that have been pledged in good
faith may be regarded as outstanding for the purposes of this Section if the
pledgee shall establish to the satisfaction of the Trustee the pledgee's right
to vote such Securities and that the pledgee is not a person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Corporation. In the case of a dispute as to such right, any
decision by the Trustee taken upon the advice of counsel shall be full
protection to the Trustee.
SECTION 8.05. REVOCATION OF CONSENTS; FUTURE SECURITYHOLDERS BOUND. At
any time prior to the taking of any action by the Holders of the percentage in
aggregate principal amount of the Securities specified in this Indenture in
connection with such action, any Holder of a Security the identifying number of
which is shown by the evidence to be included in the Securities the Holders of
which have consented to such action may, by filing written notice with the
Trustee at its office and upon proof of holding as provided in Section 8.02,
revoke such action so far as concerns such Security. Except as aforesaid any
such action taken by the Holder of any Security shall be conclusive and binding
upon such Holder and upon all future Holders and owners of such Security and of
any Security issued in exchange or substitution therefor irrespective of whether
or not any notation in regard thereto is made upon such Security. Any action
taken by the Holders of the percentage in aggregate principal amount of the
Securities specified in this Indenture in connection with such action shall be
conclusively binding upon the Corporation, the Trustee and the Holders of all
the Securities of each series intended to be affected thereby.
SECTION 8.06. SECURITIES IN A FOREIGN CURRENCY. Unless otherwise
specified in an Officers' Certificate delivered pursuant to Section 2.01 of this
Indenture or in an indenture supplemental hereto with respect to a particular
series of Securities, on any day when for purposes of this Indenture any action
may be taken by the Holders of a specified percentage in aggregate principal
amount of two or more series of outstanding Securities and, at such time, there
are outstanding Securities of at least one such series that are denominated in a
coin or currency other than that of at least one other such series, then the
principal amount of Securities of each such series (other than any such series
denominated in U.S. Dollars) that shall be deemed to be outstanding for the
purpose of taking such action shall be that amount of U.S. Dollars that could be
obtained for such amount at the Market Exchange Rate. For purposes of this
Section 8.06, "Market Exchange Rate" shall mean (i) for any conversion involving
a Currency unit on
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the one hand and dollars or any foreign currency on the other, the exchange rate
between the relevant Currency unit and dollars or such foreign currency, (ii)
for any conversion of dollars into any foreign currency, the noon U.S. Dollar
buying rate for such foreign currency for cable transfers quoted in The City of
New York on such day as certified for customs purposes by the Federal Reserve
Bank of New York and (iii) for any conversion of one foreign currency into
dollars or another foreign currency, the spot rate at noon local time in the
relevant market at which, in accordance with normal banking procedures, the
dollars or foreign currency into which conversion is being made could be
purchased with the foreign currency from which conversion is being made from
major banks located in either New York City, London or any other principal
market for dollars or such purchased foreign currency. In the event of the
unavailability of any of the exchange rates provided for in the foregoing
clauses (i), (ii) and (iii) the Trustee shall use, in its sole discretion and
without liability on its part, such quotation of the Federal Reserve Bank of New
York as of the most recent available date, or quotations from one or more major
banks in New York City, London or other principal market for such Currency or
Currency unit in question, or such other quotations as the Trustee shall deem
appropriate. Unless otherwise specified by the Trustee, if there is more than
one market for dealing in any Currency or Currency unit by reason of foreign
exchange regulations or otherwise, the market to be used in respect of such
Currency or Currency unit shall be that upon which a nonresident issuer of
securities designated in such Currency or Currency unit would purchase such
Currency or Currency unit in order to make payments in respect of such
securities. The provisions of this paragraph shall apply in determining the
equivalent number of votes that each Securityholder or proxy shall be entitled
to pursuant to Section 9.05, in respect of Securities of a series denominated in
a currency other than U.S. Dollars.
All decisions and determinations of the Corporation regarding the
Market Exchange Rate shall be in its sole discretion and shall, in the absence
of manifest error, be conclusive for all purposes and irrevocably binding upon
the Corporation and all Holders.
ARTICLE NINE.
SECURITYHOLDERS' MEETINGS.
SECTION 9.01. PURPOSES OF MEETINGS. A meeting of Securityholders of any
or all series may be called at any time and from time to time pursuant to the
provisions of this Article for any of the following purposes:
(1) to give any notice to the Corporation or to the Trustee, or to give
any directions to the Trustee, or to waive any default hereunder and its
consequences, or to take any other action authorized to be taken by
Securityholders pursuant to any of the provisions of Article Six;
(2) to remove the Trustee and appoint a successor trustee pursuant to
the provisions of Article Seven;
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(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 10.02; or
(4) to take any other action authorized to be taken by or on behalf of
the Holders of any specified aggregate principal amount of the Securities of any
or all series, as the case may be, under any other provision of this Indenture
or under applicable law.
SECTION 9.02. CALL OF MEETINGS BY TRUSTEE. The Trustee may at any time
call a meeting of Holders of Securities of any or all series to take any action
specified in Section 9.01, to be held at such time and at such place in the
Borough of Manhattan, The City of New York, or in London, as the Trustee shall
determine. Notice of every meeting of the Holders of Securities of any or all
series, setting forth the time and place of such meeting and in general terms
the action proposed to be taken at such meeting, shall be given (i) if any
Unregistered Securities of a series that may be affected by the action proposed
to be taken at such meeting are then outstanding, to all Holders thereof, by
publication at least twice in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and at least twice in an Authorized Newspaper in
London (and, if required by Section 4.04, at least once in an Authorized
Newspaper in Luxembourg) prior to the date fixed for the meeting, the first
publication, in each case, to be not less than twenty nor more than one hundred
eighty days prior to the date fixed for the meeting and the last publication to
be not more than five days prior to the date fixed for the meeting, (ii) if any
Unregistered Securities of a series that may be affected by the action proposed
to be taken at such meeting are then outstanding, to all Holders thereof who
have filed their names and addresses with the Trustee as described in Section
313(c) of the Trust Indenture Act of 1939, by mailing such notice to such
Holders at such addresses, not less than twenty nor more than one hundred eighty
days prior to the date fixed for the meeting and (iii) to all Holders of then
outstanding Registered Securities of each series that may be affected by the
action proposed to be taken at such meeting, by mailing such notice to such
Holders at their addresses as they shall appear on the Security Register, not
less than twenty nor more than one hundred eighty days prior to the date fixed
for the meeting. Failure of any Holder or Holders to receive such notice, or any
defect therein, shall in no case affect the validity of any action taken at such
meeting. Any meeting of Holders of Securities of all or any series shall be
valid without notice if the Holders of all such Securities outstanding, the
Corporation and the Trustee are present in person or by proxy or shall have
waived notice thereof before or after the meeting. The Trustee may fix, in
advance, a date as the record date for determining the Holders entitled to
notice of or to vote at any such meeting at not less than twenty or more than
one hundred eighty days prior to the date fixed for such meeting.
SECTION 9.03. CALL OF MEETINGS BY CORPORATION OR SECURITYHOLDERS. In
case at any time the Corporation, pursuant to a Board Resolution, or the Holders
of at least ten percent in aggregate principal amount of the Securities of any
or all series, as the case may be, then outstanding, shall have requested the
Trustee to call a meeting of Securityholders of any or all series to take any
action authorized in Section 9.01, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed or published, as provided in Section 9.02, the
notice of such meeting within thirty days after receipt of such request, then
the Corporation or the Holders of
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such Securities in the amount above specified may determine the time and the
place in said Borough of Manhattan, The City of New York or London for such
meeting and may call such meeting to take any action authorized in Section 9.01,
by mailing notice thereof as provided in Section 9.02.
SECTION 9.04. QUALIFICATION FOR VOTING. To be entitled to vote at any
meeting of Securityholders a person shall be a Holder of one or more Securities
of a series with respect to which a meeting is being held or a person appointed
by instrument in writing as proxy by such a Holder. The only persons who shall
be entitled to be present or to speak at any meeting of the Securityholders
shall be the persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Corporation and its counsel.
SECTION 9.05. REGULATIONS. Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Securityholders, in regard to proof of the holding
of Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Corporation or by Securityholders as provided in Section 9.03, in which case the
Corporation or the Securityholder calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of the Holders of a
majority in principal amount of the Securities represented at the meeting and
entitled to vote.
Subject to the provisions of Sections 8.01 and 8.04, at any meeting
each Securityholder or proxy shall be entitled to one vote for each U.S. $1,000
principal amount of Securities held or represented by him, her or it; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not outstanding and ruled by the chairman of the meeting
not to be outstanding. The chairman of the meeting shall have no right to vote
except as a Securityholder or proxy. Any meeting of Securityholders duly called
pursuant to the provisions of Section 9.02 or 9.03 may be adjourned from time to
time, and the meeting may be held as so adjourned without further notice.
SECTION 9.06. VOTING. The vote upon any resolution submitted to any
meeting of Securityholders shall be by written ballot on which shall be
subscribed the signatures of the Securityholders or proxies and on which shall
be inscribed the identifying number or numbers or to which shall be attached a
list of identifying numbers of the Securities held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified reports in
duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Securityholders shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the
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inspectors of votes on any vote by ballot taken thereat and affidavit by one or
more persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was mailed as provided in Section 9.02
or Section 9.03. The record shall be signed and verified by the permanent
chairman and secretary of the meeting and one of the duplicates shall be
delivered to the Corporation and the other to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
ARTICLE TEN.
SUPPLEMENTAL INDENTURES.
SECTION 10.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
SECURITYHOLDERS. The Corporation, when authorized by Board Resolution, 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 of 1939) for one or more of the following purposes:
(a) to evidence the succession of another entity to the Corporation, or
successive successions, and the assumption by any successor entity of the
covenants, agreements and obligations of the Corporation pursuant to Article
Eleven hereof;
(b) to add to the covenants of the Corporation such further covenants,
restrictions, conditions or provisions as its Board of Directors and the Trustee
shall consider to be for the protection of the Holders of Securities of any or
all series, or the Coupons appertaining to such 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 with respect to any or all series permitting the enforcement of
all or any of the several remedies provided in this Indenture as herein set
forth, with such period of grace, if any, and subject to such conditions as such
supplemental indenture may provide;
(c) to add or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Securities
of any series in bearer form, registrable or not registrable as to principal,
and with or without interest Coupons, and to provide for exchangeability of such
Securities with Securities issued hereunder in fully registered form and to make
all appropriate changes for such purpose, and to add or change any of the
provisions of this Indenture to such extent as shall be necessary to permit or
facilitate the issuance of uncertificated Securities of any series;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture that may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture; or to make such other provisions in regard to
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matters or questions arising under this Indenture as shall not adversely affect
the interests of the Holders of any series of Securities or any Coupons
appertaining to such Securities;
(e) to convey, transfer, assign, mortgage or pledge any property to or
with the Trustee;
(f) to evidence and provide for the acceptance and appointment
hereunder by a successor trustee with respect to the Securities of one or more
series and to add or change provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one trustee, pursuant to Section 7.11;
(g) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 2.03; and
(h) to change or eliminate any provision of this Indenture, provided
that any such change or elimination (i) shall become effective only when there
is no Security outstanding of any series created prior to the execution of such
supplemental indenture that is entitled to the benefit of such provision or (ii)
shall not apply to any Security outstanding.
The Trustee is hereby authorized to join with the Corporation in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations that 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 that adversely affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
may be executed by the Corporation and the Trustee without the consent of the
Holders of any of the Securities at the time outstanding, notwithstanding any of
the provisions of Section 10.02.
SECTION 10.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS.
With the consent (evidenced as provided in Section 8.01) of the Holders of not
less than a majority in the aggregate principal amount of the Securities of all
series at the time outstanding affected by such supplemental indenture (voting
as one class), the Corporation, when authorized by a Board Resolution, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indentures or modifying in any manner the rights of the
Holders of the Securities of each such series or any Coupons appertaining to
such Securities; provided, however, that no such supplemental indenture shall
(i) change the fixed maturity of any Securities, or reduce the principal amount
thereof (or premium, if any), or reduce the rate or extend the time of payment
of any interest or Additional Amounts thereon or reduce the amount due and
payable upon acceleration of the maturity thereof or the amount provable in
bankruptcy, or make the principal of (premium, if any) or interest, if any, or
Additional Amounts, if any, on any Security payable in any coin or currency
other than that provided in such Security, (ii) impair
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the right to institute suit for the enforcement of any such payment on or after
the stated maturity thereof (or, in the case of redemption, on or after the
redemption date therefor) or (iii) reduce the aforesaid percentage of
Securities, the consent of the Holders of which is required for any such
supplemental indenture, or the percentage required for the consent of the
Holders pursuant to Section 6.01 to waive defaults, without the consent of the
Holder of each Security so affected.
Upon the request of the Corporation, accompanied by a copy of a Board
Resolution certified by the Secretary or an Assistant Secretary of the
Corporation authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Securityholders
as aforesaid, the Trustee shall join with the Corporation 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 Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution and delivery by the Corporation and the
Trustee of any supplemental indenture pursuant to the provisions of this
Section, the Trustee shall give notice of such supplemental indenture (i) to the
Holders of then outstanding Registered Securities of each series affected
thereby, by mailing a notice thereof by first-class mail to such Holders at
their addresses as they shall appear on the Security Register, (ii) if any
Unregistered Securities of a series affected thereby are then outstanding, to
the Holders thereof who have filed their names and addresses with the Trustee as
described in Section 313(c) of the Trust Indenture Act, by mailing a notice
thereof by first-class mail to such Holders at such addresses as were so
furnished to the Trustee and (iii) if any Unregistered Securities of a series
affected thereby are then outstanding, to all Holders thereof, by Publication of
a notice thereof at least once in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and at least once in an Authorized Newspaper in
London (and, if required by Section 4.04, at least once in an Authorized
Newspaper in Luxembourg), and in each case such notice shall set forth in
general terms the substance of such supplemental indenture. Any failure of the
Corporation to mail or publish such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 10.03. COMPLIANCE WITH TRUST INDENTURE ACT; EFFECT OF
SUPPLEMENTAL INDENTURES. Any supplemental indenture executed pursuant to the
provisions of this Article Ten shall comply with the Trust Indenture Act of
1939. Upon the execution of any supplemental indenture pursuant to the
provisions of this Article Ten, 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 Corporation and the Holders of Securities shall thereafter
be determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments,
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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 Ten.
SECTION 10.04. NOTATION ON SECURITIES. Securities of any series
authenticated and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article Ten may bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. New Securities of any series so modified as to conform, in the
opinion of the Trustee and the Board of Directors of the Corporation, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared by the Corporation, authenticated by the Trustee and delivered,
without charge to the Securityholders, in exchange for the Securities of such
series then outstanding.
ARTICLE ELEVEN.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE.
SECTION 11.01. CORPORATION MAY CONSOLIDATE, ETC., ON CERTAIN TERMS. The
Corporation covenants that it will not merge or consolidate with any other
entity or sell or convey all or substantially all of its assets to any person or
entity, unless (i) either the Corporation shall be the continuing corporation,
or the successor entity (if other than the Corporation) shall be an entity
organized and existing under the laws of the United States of America or any
State thereof and such successor entity shall expressly assume, by a
supplemental indenture in form satisfactory to the Trustee and executed and
delivered to the Trustee by such successor entity, the due and punctual payment
of the principal of (and premium, if any), interest, if any, and Additional
Amounts, if any, on all the Securities and any Coupons, according to their
tenor, and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed or satisfied by the
Corporation, (ii) immediately after giving effect to such merger or
consolidation, or such sale or conveyance, no Event of Default, and no event
that, after notice or lapse of time or both, would become an Event of Default,
shall have occurred and be continuing and (iii) the Corporation shall have
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating, that such consolidation, merger, sale or conveyance and such
supplemental indenture, and any such assumption by the successor entity,
complies with the provisions of this Article Eleven.
SECTION 11.02. SUCCESSOR CORPORATION SUBSTITUTED. In case of any such
consolidation, merger, sale or conveyance and upon any such assumption by the
successor entity, such successor entity shall succeed to and be substituted for
the Corporation, with the same effect as if it had been named herein as the
party of the first part. Such successor entity thereupon may cause to be signed,
and may issue either in its own name or in the name of Delphi Automotive Systems
Corporation, any or all of the Securities, and any Coupons appertaining thereto,
issuable
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hereunder which theretofore shall not have been signed by the Corporation and
delivered to the Trustee; and, upon the order of such successor entity, instead
of the Corporation, and subject to all the terms, conditions and limitations
prescribed in this Indenture, the Trustee shall authenticate and shall deliver
any Securities or Coupons which previously shall have been signed and delivered
by the officers of the Corporation to the Trustee for authentication, and any
Securities or Coupons that such successor entity thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All of the Securities, and
any Coupons appertaining thereto, so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Securities or Coupons
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities, and any Coupons appertaining thereto, 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
Securities and Coupons thereafter to be issued as may be appropriate.
SECTION 11.03. CERTIFICATE TO TRUSTEE. On or before April 1, 2000, and
on or before April 1 in each year thereafter, the Corporation will deliver to
the Trustee an Officers' Certificate signed by the Corporation's principal
executive officer, principal financial officer or principal accounting officer,
as to such Officer's knowledge of the Corporation's compliance with all
conditions and covenants under this Indenture (such compliance to be determined
without regard to any period of grace or requirement of notice provided under
this Indenture), as required by Section 314(a)(4) of the Trust Indenture Act of
1939.
ARTICLE TWELVE.
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS.
SECTION 12.01. DISCHARGE OF INDENTURE. If at any time (i) the
Corporation shall have delivered to the Trustee for cancellation all Securities
of any series theretofore authenticated (other than any Securities of such
series and Coupons pertaining thereto that shall have been destroyed, lost or
stolen and that shall have been replaced or paid as provided in Section 2.07) or
(ii) all Securities of any series and any Coupons appertaining to such
Securities 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
Corporation shall deposit or cause to be deposited with the Trustee as trust
funds the entire amount (other than moneys repaid by the Trustee or any paying
agent to the Corporation in accordance with Sections 12.04 or 12.05) sufficient
to pay at maturity or upon redemption all Securities of such series and all
Coupons appertaining to such Securities not theretofore delivered to the Trustee
for cancellation (other than any Securities of such series and Coupons
pertaining thereto that shall have been destroyed, lost or stolen and that shall
have been replaced or paid as provided in Section 2.07), including principal
(and premium, if any), interest,
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if any, and Additional Amounts, if any, due or to become due to such date of
maturity or date fixed for redemption, as the case may be, and if in either case
the Corporation shall also pay or cause to be paid all other sums payable
hereunder by the Corporation with respect to such series, then this Indenture
shall cease to be of further effect with respect to the Securities of such
series or any Coupons appertaining to such Securities, and the Trustee, on
demand of and at the cost and expense of the Corporation and subject to Section
14.04, shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture with respect to the Securities of such series and all
Coupons appertaining to such Securities. The Corporation agrees to reimburse the
Trustee for any costs or expenses thereafter reasonably and properly incurred by
the Trustee in connection with this Indenture or the Securities of such series
or any Coupons appertaining to such Securities.
SECTION 12.02. SATISFACTION, DISCHARGE AND DEFEASANCE OF SEUCTITIES OF
ANY SERIES. If pursuant to Section 2.01 provision is made for the defeasance of
Securities of a series, then the provisions of this Section 12.02 shall be
applicable except as otherwise specified as contemplated by Section 2.01 for
Securities of such series. At the Corporation's option, either (a) the
Corporation shall be deemed to have paid and discharged the entire indebtedness
on all the outstanding Securities of any such series and the Trustee, at the
expense of the Corporation, shall execute proper instruments acknowledging
satisfaction and discharge of such indebtedness or (b) the Corporation shall
cease to be under any obligation to comply with any term, provision, condition
or covenant specified as contemplated by Section 2.01, when
(1) either
(A) with respect to all outstanding Securities of such series,
(i) the Corporation has deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose an
amount (in such currency in which such outstanding Securities
and any related Coupons are then specified as payable at
stated maturity) sufficient to pay and discharge the entire
indebtedness of all outstanding Securities of such series for
principal (and premium, if any), interest, if any, and
Additional Amounts, if any, to the stated maturity or any
redemption date as contemplated by the last paragraph of this
section 12.02, as the case may be; or
(ii) the Corporation has deposited or caused to be deposited
with the Trustee as obligations in trust for the purpose such
amount of direct noncallable obligations of, or noncallable
obligations the payment of principal of and interest on which
is fully guaranteed by , the United States of America, or to
the payment of which obligations or guarantees the full faith
and credit of the United States of America is pledged,
maturing as to principal and interest in such amounts and at
such times as will, together with the income to accrue thereon
(but without reinvesting any proceeds thereof), be sufficient
to pay and discharge the entire indebtedness on all
outstanding Securities of such series for principal (and
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premium, if any), interest, if any, and Additional Amounts ,
if any, to the stated maturity or any redemption date as
contemplated by the last paragraph of this Section 12.02, as
the case may be; or
(B) the Corporation has properly fulfilled such other terms
and conditions of the satisfaction and discharge as is specified, as
contemplated by Section 2.01, as applicable to the Securities of such series,
and
(2) the Corporation has paid or caused to be paid all other sums
payable with respect to the outstanding Securities of such series, and
(3) The Corporation has delivered to the Trustee an Opinion of Counsel
stating that (i) the Corporation has received from, or there has been published
by, the Internal Revenue Service a ruling or (ii) since the date of execution of
this Indenture, there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion shall
confirm that, the holders of the outstanding Securities and any related Coupons
will not recognize income, gain or loss for Federal income tax purposes as a
result of such deposit, defeasance and discharge and will be subject to Federal
income tax on the same amounts and in the same manner and at the same times, as
would have been the case if such deposit, defeasance and discharge had not
occurred, and
(4) the Corporation has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of the
entire indebtedness on all outstanding Securities of any such series have been
complied with.
Any deposits with the Trustee referred to in Section 12.02(l)(A) above
shall be irrevocable and shall be made under the terms of an escrow trust
agreement in form and substance satisfactory to the Trustee. If any outstanding
Securities of such series are to be redeemed prior to their stated maturity,
whether pursuant to an optional redemption provision or in accordance with any
mandatory sinking fund requirement or otherwise, the applicable escrow trust
agreement shall provide therefor and the Corporation shall make such
arrangements as are satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Corporation.
SECTION 12.03. DEPOSITED MONEYS TO BE HELD IN TRUST BY TRUSTEE. All
moneys deposited with the Trustee pursuant to Section 12.01 or 12.02 shall be
held in trust and applied by it to the payment, either directly or through any
paying agent (including the Corporation acting as its own paying agent), to the
Holders of the particular Securities and of any Coupons appertaining to such
Securities for the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for
principal (and premium, if any), interest, if any, and Additional Amounts, if
any.
SECTION 12.04. PAYING AGENT TO REPAY MONEYS HELD. In connection with
the satisfaction and discharge of this Indenture with respect to Securities of
any series, all
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<PAGE> 62
moneys with respect to such Securities then held by any paying agent under the
provisions of this Indenture shall, upon demand of the Corporation, be repaid to
it or paid to the Trustee and thereupon such paying agent shall be released from
any further liability with respect to such moneys.
SECTION 12.05. RETURN OF UNCLAIMED MONEYS. Any moneys deposited with or
paid to the Trustee or any paying agent for the payment of the principal of (and
premium, if any), interest, if any, and Additional Amounts, if any, on any
Security and not applied but remaining unclaimed for two years after the date
upon which such principal (and premium, if any), interest, if any, and
Additional Amounts, if any, shall have become due and payable, shall, unless
otherwise required by mandatory provisions of applicable escheat or abandoned or
unclaimed property law, be repaid to the Corporation by the Trustee or such
paying agent on demand, and the Holder of such Security or any Coupon
appertaining to such Security shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law,
thereafter look only to the Corporation for any payment that such Holder may be
entitled to collect and all liability of the Trustee or any paying agent with
respect to such moneys shall thereupon cease; provided, however, that the
Trustee or such paying agent, before being required to make any such repayment
with respect to moneys deposited with it or any payment in respect of
Unregistered Securities of any series, may at the expense of the Corporation
cause to be published once, in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and once in an Authorized Newspaper in London
(and, if required by Section 4.04, at least once in an Authorized Newspaper in
Luxembourg), notice that such moneys remain and that, after a date specified
therein, which shall not be less than thirty days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Corporation.
ARTICLE THIRTEEN.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS.
SECTION 13.01. Indenture And Securities Solely Corporate Obligations.
No recourse under or upon any obligation, covenant or agreement contained in
this Indenture or any indenture supplemental hereto, or in any Security, or
because or on account of any indebtedness evidenced thereby, shall be had
against any past, present or future incorporator, stockholder, officer or
director, or other applicable principal, as such, of the Corporation or of any
successor entity, either directly or through the Corporation or any successor
entity, under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders thereof and as part of the
consideration for the issue of the Securities and Coupons.
-57-
<PAGE> 63
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS.
SECTION 14.01. BENEFITS OF INDENTURE RESTRICTED TO PARTIES AND
SECURITYHOLDERS. Nothing in this Indenture or in the Securities or Coupons,
expressed or implied, shall give or be construed to give to any Person, other
than the parties hereto and their successors and the Holders of the Securities
or Coupons, any legal or equitable right, remedy or claim under this Indenture
or under any covenant or provision herein contained, all such covenants and
provisions being for the sole benefit of the parties hereto and their successors
and of the Holders of the Securities or Coupons.
SECTION 14.02. PROVISIONS BINDING ON CORPORATION'S SUCCESSORS. All the
covenants, stipulations, promises and agreements contained in this Indenture by
or on behalf of the Corporation shall bind its successors and assigns, whether
so expressed or not.
SECTION 14.03. ADDRESSES FOR NOTICES, ETC. Any notice or demand that by
any provision of this Indenture is required or permitted to be given or served
by the Trustee or by the Holders of Securities to or on the Corporation may be
given or served by being deposited postage prepaid first class mail in a post
office letter box addressed (until another address is filed by the Corporation
with the Trustee), as follows: Delphi Automotive Systems Corporation, 5725
Delphi Drive, Troy, Michigan 48098, Attention General Counsel. Any notice,
direction, request or demand by any Securityholder to or upon the Trustee shall
be deemed to have been sufficiently given or made, for all purposes, if given or
made in writing at its Corporate Trust Office, which is, at the date of this
Indenture, One First National Plaza, Suite 0126, Chicago, Illinois 60670-0126.
SECTION 14.04. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT. Upon
any application or demand by the Corporation to the Trustee to take any action
under any of the provisions of this Indenture, the Corporation 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
documents 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 (1) a statement that the person
making such certificate or opinion has read such covenant or condition, (2) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based, (3) a statement that, in the opinion of such person, he or she has
made such examination or investigation as is necessary to enable him or her to
express an informed opinion as to whether or
-58-
<PAGE> 64
not such covenant or condition has been complied with and (4) a statement as to
whether or not, in the opinion of such person, such condition or covenant has
been complied with.
SECTION 14.05. LEGAL HOLIDAYS. In any case where the date of maturity
of any interest, premium or Additional Amounts on or principal of, the
Securities or the date fixed for redemption of any Securities shall not be a
Business Day in a city where payment thereof is to be made, then payment of any
interest, premium or Additional Amounts on, or principal of, such Securities
need not be made on such date in such city but may be made on the next
succeeding Business Day with the same force and effect as if made on the date of
maturity or the date fixed for redemption, and no interest shall accrue for the
period after such date.
SECTION 14.06. 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 by operation of Sections 310 to 317,
inclusive, of the Trust Indenture Act of 1939 (an "incorporated provision"),
such incorporated provision shall control.
SECTION 14.07. EXECUTION 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 one and the same instrument.
SECTION 14.08. NEW YORK CONTRACT. This Indenture and each Security
shall be deemed to be a contract made under the laws of the State of New York,
and for all purposes shall be governed by and construed in accordance with the
laws of said State, regardless of the laws that might otherwise govern under
applicable New York principles of conflicts of law and except as may otherwise
be required by mandatory provisions of law. Any claims or proceedings in respect
of this Indenture shall be heard in a federal or state court located in the
State of New York.
SECTION 14.09. JUDGMENT CURRENCY. The Corporation agrees, to the
fullest extent that it may effectively do so under applicable law, that (a) if
for the purposes of obtaining judgment in any court it is necessary to convert
the sum due in respect of the principal of or interest on the Securities of any
series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could purchase
in he City of New York the Required Currency with the Judgment Currency on the
date on which final unappealable judgment is entered, unless such day is not a
New York Banking Day, then, to the extent permitted by applicable law, the rate
of exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the New York Banking Day next preceding
the day on which final unappealable judgment is entered and (b) its obligations
under this Indenture to make payments in the Required Currency (i) shall not be
discharged or satisfied by any tender, or any recovery pursuant to any judgment
(whether or not entered in accordance with subsection (a)), in any currency
other than the Required Currency, except to the extent that such tender or
recovery shall result in the actual receipt, by the payee, of the full amount of
the Required Currency expressed to be payable in respect of such payments, (ii)
shall be enforceable
-59-
<PAGE> 65
as an alternative or additional cause of action for the purpose of recovering in
the Required Currency the amount, if any, by which such actual receipt shall
fall short of the full amount of the Required Currency so expressed to be
payable and (iii) shall not be affected by judgment being obtained for any other
sum due under this Indenture. For purposes of the foregoing, "New York Banking
Day" means any day except a Saturday, Sunday or a legal holiday in The City of
New York or a day on which banking institutions in The City of New York are
authorized or required by law or executive order to close.
SECTION 14.10. SEVERABILITY OF PROVISIONS. Any prohibition, invalidity
or unenforceability of any provision of this Indenture in any jurisdiction shall
not invalidate or render unenforceable the remaining provisions hereto in such
jurisdiction and shall not invalidate or render unenforceable such provisions in
any other jurisdiction.
SECTION 14.11. CORPORATION RELEASED FROM INDENTURE REQUIREMENTS UNDER
CERTAIN CIRCUMSTANCES. Whenever in this Indenture the Corporation shall be
required to do or not to do any thing so long as any of the Securities of any
series shall be Outstanding, the Corporation shall, notwithstanding any such
provision, not be required to comply with such provisions if it shall be
entitled to have this Indenture satisfied and discharged pursuant to the
provisions hereof, even though in either case the Holders of any of the
Securities of that series shall have failed to present and surrender them for
payment pursuant to the terms of this Indenture.
The First National Bank of Chicago, the party of the second part,
hereby accepts the trusts in this Indenture declared and provided, upon the
terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, DELPHI AUTOMOTIVE SYSTEMS CORPORATION, the party of
the first part, has caused this Indenture to be signed and acknowledged by its
Chairman of the Board of Directors, its President or any Vice President or its
Treasurer, and its corporate seal to be affixed hereunto, and the same to be
attested by its Secretary or an Assistant Secretary; and The First National Bank
of Chicago, the party of the second part, has caused this Indenture to be
signed, and its corporate seal to be affixed hereunto, and the same to be
attested by its duly authorized officers, all as of the day and year first above
written.
{Corporate Seal} DELPHI AUTOMOTIVE SYSTEMS CORPORATION
Attest: By:
-----------------------------------
{Corporate Seal} THE FIRST NATIONAL BANK OF CHICAGO
Attest: By:
-----------------------------------
-60-
<PAGE> 66
STATE OF MICHIGAN )
) ss.:
COUNTY OF OAKLAND )
On the day of , 1999 before me personally came
, to me known, who being by me duly sworn, did depose
and say that he/she resides at ,
that he/she is the of Delphi Automotive Systems Corporation,
one of the corporations described in and which executed the foregoing
instrument; that he/she knows the seal of said Corporation; that the seal
affixed to said instrument is such Corporate seal; that it was so affixed by
authority of the Board of Directors of said Corporation, and that he/she signed
his/her name thereto by like authority.
{SEAL}
Notary Public
-61-
<PAGE> 67
STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
On the day of , 1999 before me personally came
, to me known, who being by me duly sworn, did depose
and say that he/she resides
at , that he/she is a
of The First National Bank of Chicago, one of the corporations
described in and which executed the foregoing instrument; that he/she knows the
seal of said Corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation, and that he/she signed his/her name thereto by like authority.
{SEAL}
Notary Public
-62-
<PAGE> 1
EXHIBIT 4.2
THIS IS A GLOBAL SECURITY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW
YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
DELPHI AUTOMOTIVE SYSTEMS CORPORATION
% NOTE DUE CUSIP NO.
DELPHI AUTOMOTIVE SYSTEMS CORPORATION, a Delaware corporation
(hereinafter called the "Corporation"), for value received, hereby promises to
pay to Cede & Co., or registered assigns, the principal sum of
($ ) at the office or agency of the Corporation for
such purpose in the Borough of Manhattan, The City of New York, on [month/day],
, in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts, and
to pay interest on said principal sum at the rate of % per annum at the office
or agency of the Corporation in the Borough of Manhattan, The City of New York,
in like coin or currency from the [last] fifteenth day of [month] or [month] as
the case may be, to which interest on the Notes has been paid preceding the date
hereof (unless the date hereof is a [month/day] or [month/day] to which interest
has been paid, in which case from the date hereof, or unless no interest has
been paid on the Notes since the original issuance of this Note, in which case
from [date of issue]), semi-annually on [month/day] and [month/day], until
payment of said principal sum has been made or duly provided for.
Notwithstanding the foregoing, if the date hereof is after [month/day] or
[month/day], as the case may be, and before the following [month/day] or
[month/day], this Note shall bear interest from such [month/day] or [month/day];
provided, however, that if the Corporation shall default in the payment of
interest due on such [month/day] or [month/day], then this Note shall bear
interest from the next preceding [month/day] or [month/day] to which interest
has been paid or, if no interest has been paid on the Notes since the original
issuance of the Notes, from [date of issue]. The interest so payable on any
[month/day] or [month/day] will, subject to certain exceptions provided in the
Indenture referred to below, be paid to the person in whose name this Note is
registered at the close of business on the last [fifteenth] day of the calendar
month preceding such [month/day] or [month/day]. At the option of the
Corporation, interest may be paid by check to the registered holder hereof
entitled thereto at his last address as it appears on the registry books or by
wire transfer of immediately available funds if the registered holder hereof
holds $10,000,000 or more in aggregate principal amount of Notes, and principal
may be paid by check to the registered holder hereof or other person entitled
thereto against surrender of this Note.
This Global Note is one of a duly authorized issue of debentures,
notes, bonds or other evidences of indebtedness of the Corporation (hereinafter
called the "Securities") of the series
<PAGE> 2
hereinafter specified, all issued or to be issued under and pursuant to an
indenture dated as of , 1999 (herein called the "Indenture"), duly
executed and delivered by the Corporation to The First National Bank of Chicago,
Trustee (herein called the "Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Corporation and the holders of the Securities. The Securities may
be issued in one or more series, which different series may be issued in various
aggregate principal amounts, may mature at different times, may bear interest
(if any) at different rates, may be subject to different redemption provisions
(if any), and may otherwise vary as in the Indenture provided. This Note is one
of [number] Global Notes which together represent all of the Corporation's %
Notes Due limited in aggregate principal amount to $ (the
"Notes"). The terms of this series are set forth in a resolution of the
Committee of the Board of Directors of the Corporation dated (the
"Resolution").
In case an Event of Default, as defined in the Indenture, with respect
to the Notes shall have occurred and be continuing, the principal hereof may be
declared, and upon such declaration shall become, due and payable in the manner,
with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Corporation and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time Outstanding (as defined
in the Indenture) of all series to be affected (voting as one class), evidenced
as in the Indenture provided, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or modifying in any manner the
rights of the Holders of the Securities of each such series or any Coupons
appertaining to such Securities; provided, that no such supplemental indenture
shall (i) change the fixed maturity of any Securities, or reduce the principal
amount thereof (or premium, if any), or reduce the rate or extend the time of
payment of any interest or Additional Amounts thereon or reduce the amount due
and payable upon acceleration of the maturity thereof or the amount provable in
bankruptcy, or make the principal of (premium, if any) or interest, if any, or
Additional Amounts, if any, on any Security payable in any coin or currency
other than that provided in such Security, (ii) impair the right to institute
suit for the enforcement of any such payment on or after the stated maturity
thereof (or, in the case of redemption, on or after the redemption date
therefor) or (iii) reduce the aforesaid percentage of Securities, the consent of
the Holders of which is required for any such supplemental indenture, or the
percentage required for the consent of the Holders to waive defaults, without
the consent of the Holder of each Security so affected. Any such consent or
waiver by the Holder of this Global Note shall be conclusive and binding upon
such Holder and upon all future Holders of this Global Note and of any Global
Note issued upon the registration of transfer hereof or in lieu hereof, whether
or not notation for such consent or waiver is made upon this Global Note.
No reference herein to the Indenture and no provision of this Global
Note or of the Indenture shall alter or impair the obligation of the
Corporation, which is absolute and unconditional, to pay the principal of and
interest on this Global Note at the place, at the respective times, at the rate,
and in the coin or currency, herein prescribed.
-2-
<PAGE> 3
This Note may not be redeemed prior to . On and after
this Note is subject to redemption upon not less than 30 nor more than 60 days
notice by mail, at any time, as a whole or in part, at the election of the
Corporation, at the redemption price equal to 100% of the principal amount,
together with accrued interest thereon to the redemption date.
Upon due presentment for registration of transfer of this Global Note
at the office or agency designated and maintained by the Corporation for such
purpose in the Borough of Manhattan, The City of New York, pursuant to the
provisions of the Indenture, a new Global Note for an equal aggregate principal
amount will be issued to the transferee in exchange therefor, subject to the
limitations provided in the Indenture, without charge except for any tax or
other governmental charge imposed in connection therewith.
The Corporation, the Trustee and any authorized agent of the
Corporation or the Trustee may deem and treat the Holder in whose name this
Global Note is registered as the absolute owner of this Note (whether or not
this Note shall be overdue), for the purpose of receiving payment of, or on
account of, the principal hereof and premium, if any, and subject to the
provisions contained herein, interest hereon, and for all other purposes, and
neither the Corporation nor the Trustee nor any authorized agent of the
Corporation or the Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the
Corporation in the Indenture or any indenture supplemental thereto or in any
Note, or because of the creation of any indebtedness represented thereby, shall
be had against any past, present or future incorporator, stockholder, officer or
director, as such, of the Corporation or of any successor corporation, either
directly or through the Corporation or any successor corporation, under any rule
of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance hereof and as
part of the consideration for the issue hereof.
At the option of the Corporation and upon satisfaction of certain
conditions specified in the Indenture and the Resolution, either (a) the
Corporation shall be deemed to have paid and discharged the entire indebtedness
on the Notes or (b) the Corporation need not comply with any term, condition,
provision or covenant contained in the Indenture and the Resolution, in each
case upon the deposit by the Corporation with the Trustee in trust for the
Holders of the Notes of an amount of funds or obligations issued or guaranteed
by the United States of America sufficient to pay and discharge upon the stated
maturity thereof the entire indebtedness evidenced by the Notes, all as provided
in the Indenture and the Resolution.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
-3-
<PAGE> 4
This Note shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been signed by the Trustee
under the Indenture.
WITNESS THE SEAL OF THE Corporation AND THE SIGNATURES OF ITS DULY
AUTHORIZED OFFICERS.
Delphi Automotive Systems Corporation
Dated:
By:
-----------------------------------------
Title:
(SEAL)
By:
-----------------------------------------
Title:
-4-
<PAGE> 5
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the securities of the series designated therein referred
to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee,
By:
---------------------------------------
Authorized Signatory
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- ------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Please print or typewrite name and address including postal zip code of assignee
- --------------------------------------------------------------------------------
the within Global Note of DELPHI AUTOMOTIVE SYSTEMS CORPORATION and hereby
irrevocably constitutes and appoints
attorney to
transfer said Global Note on the books of the within-named Corporation, will
full power of substitution in the premises.
Dated:
SIGN HERE
--------------------------------------------
NOTICE: The signature of this assignment
must correspond with the name as written
upon the face of the within instrument in
every particular without alteration or
enlargement or any change whatever.
SIGNATURE GUARANTEED
-5-
<PAGE> 1
EXHIBIT 5
[Drinker Biddle & Reath Letterhead]
March , 1999
Delphi Automotive Systems Corporation
5725 Delphi Drive
Troy, Michigan 48098
Re: Delphi Automotive Systems Corporation
Registration Statement on Form S-3
(Registration No. 333- )
Ladies and Gentlemen:
We have acted as counsel to Delphi Automotive Systems Corporation (the
"Company") in connection with the preparation and filing with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Act"), of the Company's Registration Statement (the "Registration
Statement") on Form S-3 and the prospectus included therein (the "Prospectus"),
relating to the proposed issuance of debt securities of the Company (the
"Securities") pursuant to the Indenture (the "Indenture") to be entered into by
the Company and The First National Bank of Chicago, as trustee (the "Trustee")
in amounts, at prices and on terms to be determined at the time of offering.
All terms used herein have the meanings assigned to them in the
Registration Statement unless otherwise defined herein.
In so acting, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of such corporate records and other
agreements, documents and instruments, and of such certificates or comparable
documents of public officials and officers and representatives of the Company,
and have made such inquiries of such officers and representatives and have
considered such matters of law as we have deemed appropriate as the basis for
the opinions hereinafter set forth.
In all cases, we have assumed the legal capacity of each natural person
signing the Registration Statement and any other documents and instruments that
we have examined, the genuineness of signatures, the authenticity of documents
submitted to us as originals, the conformity to authentic original documents of
documents submitted to us as copies and the accuracy and completeness of all
corporate records and other information made available to us by the Company.
As to questions of fact material to this opinion, we have relied upon
the accuracy of the certificates and other comparable documents of officers and
representatives of the Company, upon statements made to us in discussions with
the Company's management and upon
<PAGE> 2
Delphi Automotive Systems Corporation
____________________, 1999
Page 2
certificates of public officials. Except as otherwise expressly indicated, we
have not undertaken any independent investigation of factual matters.
Based on the foregoing, and subject to the qualifications, limitations
and assumptions stated herein, in our opinion:
Assuming that the Indenture is duly executed and delivered by the
Company and duly authorized, executed and delivered by the Trustee, when (i) the
terms of the Securities and their issue and sale have been duly established in
conformity with the Indenture so as not to violate any applicable law or
agreement or instrument then binding on the Company and (ii) the Securities have
been duly executed and authenticated in accordance with the terms of the
Indenture and issued and sold as contemplated by each of the Registration
Statement, the Prospectus, any prospectus supplement relating to such Securities
and the Indenture, such Securities will be validly issued and will constitute
valid and binding obligations of the Company enforceable against the Company in
accordance with their terms, except as may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar
laws now or hereafter in effect affecting the rights of creditors generally and
by general principles of equity (including, without limitation, standards of
materiality, good faith, fair dealing and reasonableness), whether considered in
a proceeding at law or in equity.
Furthermore, we advise you that:
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name under the heading "Legal
Opinions" in the Prospectus. In giving such consent, we do not thereby concede
that we are within the category of persons whose consent is required under
Section 7 of the Act or the Rules and Regulations of the Commission thereunder.
Very truly yours,
DRINKER BIDDLE & REATH LLP
<PAGE> 1
EXHIBIT 12
DELPHI AUTOMOTIVE SYSTEMS
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
----------------------
1998 1997 1996 1995 1994
---- ---- ---- ---- ----
(dollars in millions)
<S> <C> <C> <C> <C> <C>
Pre tax (loss) income $ (266) $ 259 $ 1,112 $ 1,946 $ 1,877
Earnings of non-consolidated
affiliates (55) (27) (57) (47) (36)
Cash dividends received from
non-consolidated affiliates 1 12 11 3 1
Portion of rentals deemed to
be interest 37 42 43 36 32
Interest and related charges
on debt 277 287 276 293 310
------ ----- ------- ------- -------
Earnings available for
fixed charges $ (6) $ 573 $ 1,385 $ 2,231 $ 2,184
====== ===== ======= ======= =======
Fixed charges:
Portion of rentals deemed to
be interest $ 37 $ 42 $ 43 $ 36 $ 32
Interest and related charges
on debt 277 287 276 293 310
------ ----- ------- ------- -------
Total fixed charges $ 314 $ 329 $ 319 $ 329 $ 342
====== ===== ======= ======= =======
Ratio of earnings to
fixed charges N/A 1.7 4.3 6.8 6.4
=== === === === ===
</TABLE>
<PAGE> 1
EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)
-----------------
THE 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)
-----------------
DELPHI AUTOMOTIVE SYSTEMS CORPORATION
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 38-3430473
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
5725 DELPHI DRIVE
TROY, MICHIGAN 48098
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of 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.
<PAGE> 3
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.
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 4th day of
February, 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).
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
February 4, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of an indenture between Delphi Automotive
Systems Corporation and The First National Bank of Chicago, 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
<PAGE> 5
EXHIBIT 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/98 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 SEPTEMBER 30, 1998
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>
1. Cash and balances due from depository institutions (from Schedule RC-A): RCFD
a. Noninterest-bearing balances and currency and coin(1) 0081 4,898,646 1.a
b. Interest-bearing balances(2) 0071 4,612,143 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 9,817,318 2.b
3. Federal funds sold and securities purchased under agreements to resell 1350 6,071,229 3.
4. Loans and lease financing receivables:
RCFD
a. Loans and leases, net of unearned income (from Schedule RC-C) 2122 26,327,215 4.a
b. LESS: Allowance for loan and lease losses 3123 412,850 4.b
c. LESS: Allocated transfer risk reserve 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
reserve (item 4.a minus 4.b and 4.c) 2125 25,914,365 4.d
5. Trading assets (from Schedule RD-D) 3545 6,924,064 5.
6. Premises and fixed assets (including capitalized leases) 2145 731,747 6.
7. Other real estate owned (from Schedule RC-M) 2150 6,424 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) 2130 153,385 8.
9. Customers' liability to this bank on acceptances outstanding 2155 352,324 9.
10. Intangible assets (from Schedule RC-M) 2143 295,823 10.
11. Other assets (from Schedule RC-F) 2160 2,193,803 11.
12. Total assets (sum of items 1 through 11) 2170 61,971,271 12.
</TABLE>
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE> 6
<TABLE>
<S> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/98 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
LIABILITIES
<S> <C> <C> <C>
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
from Schedule RC-E, part 1) 2200 20,965,124 13.a
(1) Noninterest-bearing(1) 6631 9,191,662 13.a1
(2) Interest-bearing 6636 11,773,462 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
IBFs (from Schedule RC-E, part II) 2200 15,912,956 13.b
(1) Noninterest bearing 6631 475,182 13.b2
(2) Interest-bearing 6636 15,437,774 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 4,245,925 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 59,381 15.a
b. Trading Liabilities(from Sechedule RC-D) RCFD 3548 5,614,049 15.b
16. Other borrowed money: RCFD
a. With original maturity of one year or less 2332 4,603,402 16.a
b. With original maturity of more than one year A547 328,001 16.b
c.With original maturity of more than three years A548 324,984 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding 2920 352,324 18.
19. Subordinated notes and debentures 3200 2,400,000 19.
20. Other liabilities (from Schedule RC-G) 2930 1,833,935 20.
21. Total liabilities (sum of items 13 through 20) 2948 56,940,081 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 3,192,857 25.
26. a. Undivided profits and capital reserves 3632 1,614,511 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities 8434 27,815 26.b
27. Cumulative foreign currency translation adjustments 3284 (4,851) 27.
28. Total equity capital (sum of items 23 through 27) 3210 5,031,190 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) 3300 61,971,271 29.
Memorandum
To be reported only with the March Report of Condition.
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 Number
bank by independent external
auditors as of any date during 1996 RCFD 6724 NA.
M.1.
1 = Independent audit of the bank conducted in accordance 4.= Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state
public accounting firm which submits a report on the bank chartering authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards by
a certified public accounting firm (may be required by state
chartering authority)
</TABLE>
- ----------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
