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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (date of earliest event reported) --
September 9, 1994
THE BLACK & DECKER CORPORATION
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(Exact name of registrant as specified in its charter)
Maryland 1-1553 52-0248090
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(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
701 East Joppa Road Towson, Maryland 21286
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(Address of principal executive offices) (Zip Code)
(410) 716-3900
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(Registrant's telephone number, including area code)
Not Applicable
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(Former name or address, if changed since last report)
The exhibit index as required by item 601(a) of Regulation S-K is included on
page 4 of this report.
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Item 5. OTHER EVENTS
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This Current Report on Form 8-K is being filed in connection with the
commencement of a Medium Term Note Program by The Black & Decker Corporation, a
Maryland corporation (the "Corporation"), pursuant to which the Corporation may
offer from time to time its Medium Term Notes, Series A at an aggregate initial
offering price not to exceed $500,000,000 (or the equivalent thereof in one or
more foreign denominated currencies or currency units based on or relating to
currencies, including European Currency Units). The Medium Term Notes, Series A
may be offered from time to time under the Corporation's existing shelf
Registration Statement (Reg. No. 33-53807) covering up to $500,000,000 in Debt
Securities.
Item 7. FINANCIAL STATEMENTS AND EXHIBITS
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Exhibit No. Description of Exhibit
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1(a) Distribution Agreement dated September 9,
1994, between the Corporation and Lehman
Brothers Inc., Citicorp Securities, Inc.,
Goldman, Sachs & Co., Morgan Stanley & Co.
Incorporated, NationsBanc Capital Markets,
Inc. and Salomon Brothers Inc.
4(a) Indenture dated as of September 9, 1994,
between the Corporation and Marine Midland
Bank, as Trustee.
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THE BLACK & DECKER CORPORATION
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S I G N A T U R E
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
THE BLACK & DECKER CORPORATION
By /s/ CHARLES E. FENTON
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Charles E. Fenton
Vice President and General
Counsel
Date: September 12, 1994
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EXHIBIT INDEX
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Exhibit No. Description of Exhibit Page
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1(a) Distribution Agreement dated
September 9, 1994, between the
Corporation and Lehman Brothers Inc.,
Citicorp Securities, Inc., Goldman,
Sachs & Co., Morgan Stanley & Co.
Incorporated, NationsBanc Capital
Markets, Inc. and Salomon Brothers Inc. 5
4(a) Indenture dated as of September 9,
1994, between the Corporation and
Marine Midland Bank, as Trustee. 36
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Exhibit 1(a)
U. S. $500,000,000
THE BLACK & DECKER CORPORATION
MEDIUM TERM NOTES, SERIES A
DISTRIBUTION AGREEMENT
September 9, 1994
Lehman Brothers Inc. Citicorp Securities, Inc.
3 World Financial Center 399 Park Avenue
New York, New York 10285 New York, New York 10043
Goldman, Sachs & Co. Morgan Stanley & Co. Incorporated
399 Park Avenue 1221 Avenue of the Americas
New York, New York 10043 New York, New York 10020
NationsBanc Capital Markets, Salomon Brothers Inc
Inc. Seven World Trade Center
100 North Tryon Street New York, New York 10048
Charlotte, North Carolina 28255
Dear Sirs:
The Black & Decker Corporation, a Maryland corporation (the "Company"),
confirms its agreement with each of you (individually, an "Agent" and
collectively, the "Agents") (which terms shall, for all purposes of this
Agreement, include Lehman Government Securities Inc., an affiliate of Lehman
Brothers Inc.) with respect to the issuance and sale by the Company of up to an
aggregate of $500,000,000 (or the U.S. dollar equivalent in certain specified
foreign currencies or currency units) in gross proceeds of its Medium Term
Notes, Series A (the "Notes"). The Notes are to be issued from time to time
pursuant to an indenture, dated as of September 9, 1994 (as it may be
supplemented or amended from time to time, the "Indenture"), between the Company
and Marine Midland Bank, as trustee (the "Trustee").
The Notes shall have the maturity ranges, applicable interest rates or
interest rate formulas, specified currency, issue price, redemption and
repayment provisions and other terms set forth in the Prospectus referred to in
Section 1(a) as it may be amended or supplemented from time to time, including
any supplement providing for the interest rate, maturity and other terms of any
Note (a "Pricing Supplement"). The Notes will be issued, and the terms thereof
established, from time to time, by the Company in accordance with the Indenture
and the Procedures referred to below. This Agreement shall only apply to sales
of the Notes and not to sales of any other securities or evidences of
indebtedness of the Company and only on the specific terms set forth herein.
Subject to the terms and conditions stated herein and to the reservation by
the Company of the right to sell its Notes directly
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on its own behalf, the Company hereby (i) appoints each of the Agents as the
agent of the Company for the purpose of soliciting and receiving offers to
purchase Notes from the Company and (ii) agrees that whenever the Company
determines to sell Notes directly to an Agent as principal it will enter into a
separate agreement (each a "Purchase Agreement"). Each such Purchase Agreement,
whether oral (and confirmed in writing, which may be by facsimile transmission)
or in writing, shall be with respect to such information (as applicable) as
specified in Exhibit C hereto, relating to such sale in accordance with Section
2(e) hereof.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants to each Agent as of the date hereof, as
of the Closing Date (defined herein) and as of the times referred to in Sections
6(a) and 6(b) hereof (the Closing Date and each such time being herein sometimes
referred to as a "Representation Date") as follows:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"). The Company has prepared and
filed with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-3 (File No. 33-53807) relating to the Notes and
the offering thereof and has filed such amendments thereto as may have been
required to the date hereof. Such registration statement, as amended, has been
declared effective by the Commission. No stop order suspending the
effectiveness of such registration statement has been issued and no proceeding
for that purpose has been initiated or threatened by the Commission.
As provided in Section 3, a prospectus supplement reflecting the terms
of any Notes to be sold through or to the Agents ("Designated Notes"), the terms
of the offering thereof and the other matters set forth therein will be prepared
and filed pursuant to Rule 424 under the Act. In addition, a preliminary
prospectus supplement reflecting the terms of the Designated Notes, the terms of
the offering thereof and the other matters set forth therein may also be
prepared and filed pursuant to Rule 424 under the Act. Such prospectus
supplement, as filed pursuant to Rule 424 under the Act, is herein referred to
as the "Prospectus Supplement," and any such preliminary prospectus supplement
in the form filed pursuant to Rule 424 under the Act is hereinafter referred to
as the "Preliminary Prospectus Supplement." Any prospectus accompanied by a
Preliminary Prospectus Supplement is hereinafter referred to, collectively with
such Preliminary Prospectus Supplement, as a "Preliminary Prospectus." The
registration statement referred to above in this Section 1(a), as amended at the
time of execution of the applicable Pricing Agreement, or, if there is no
Pricing Agreement relating to the particular offering of the Notes, at the time
the Company accepts the applicable offer to purchase Notes, including the
exhibits thereto and the documents incorporated by reference therein, is herein
called the "Registration Statement," and the basic prospectus included therein
relating to all offerings of securities
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under the Registration Statement, as then supplemented by the Prospectus
Supplement (as such Prospectus Supplement is itself supplemented by the Pricing
Supplement in the form first filed pursuant to Rule 424 under the Act), is
herein called the "Prospectus," in each case including the documents filed by
the Company with the Commission pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), that are incorporated by reference therein.
All references in this Agreement to financial statements and schedules and other
information, facts and statements which are "contained," "included" or "stated"
in the Registration Statement, the Prospectus or the Preliminary Prospectus (and
all other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information which is or is
deemed to be incorporated by reference in the Registration Statement, the
Prospectus or the Preliminary Prospectus, as the case may be. Any reference in
this Agreement to amending or supplementing the Prospectus shall be deemed to
include the filing of materials incorporated by reference in the Prospectus
after the Closing Date, and any reference in this Agreement to any amendment or
supplement to the Prospectus shall be deemed to include any such materials
incorporated by reference in the Prospectus after the Closing Date.
(b) The Registration Statement and the Prospectus, as of the
applicable Representation Date and at all times during each period during which
a prospectus relating to the Notes is required to be delivered under the Act
(each, a "Marketing Period"), complied and will comply in all material respects
with the applicable requirements of the Act and rules and regulations (the "1933
Act Regulations") of the Commission thereunder. The Registration Statement does
not, and will not, as of the applicable Representation Date and at all times
during each Marketing Period, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading. The Prospectus does not, and will
not, as of the applicable Representation Date and at all times during each
Marketing Period, contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection shall not
apply to statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information furnished to
the Company in writing by any of the Agents expressly for use in the
Registration Statement or Prospectus relating to such Notes or to that part of
the Registration Statement which shall constitute the Statement of Eligibility
and Qualification under the Trust Indenture Act (Form T-1) of the Trustee under
the Indenture.
(c) The documents incorporated by reference in the Registration
Statement and Prospectus do, and will, as of the applicable Representation Date
and at all times during each Marketing Period comply in all material respects
with the applicable requirements of the Exchange Act, and the applicable
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rules and regulations of the Commission thereunder and, when read together with
the other information in the Prospectus, do not, and will not, as of the
applicable Representation Date and at all times during each Marketing Period,
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they are made, not
misleading.
(d) When the Registration Statement became effective, the Indenture
was, and at all times thereafter the Indenture has been and will be, duly
qualified under the Trust Indenture Act, and when such Registration Statement
became effective the Indenture conformed, and at all times thereafter the
Indenture has conformed and will conform, in all material respects to the
applicable requirements of the Trust Indenture Act and the rules and regulations
(the "Trust Indenture Act Regulations") of the Commission thereunder.
(e) The Company has all requisite corporate power and authority to
execute and deliver this Agreement and each Purchase Agreement. This Agreement
and the applicable Purchase Agreement have been duly authorized, executed and
delivered by the Company.
(f) The Company has all of the requisite corporate power and authority
to execute, issue and deliver the Designated Notes and to incur and perform its
obligations provided for therein; from the time a Purchase Agreement is executed
and delivered by the Company in respect of Designated Notes or, if there is no
Purchase Agreement, from the time the Company accepts an offer to purchase
Designated Notes, such Designated Notes will have been duly authorized by the
Company and, when such Designated Notes are authenticated in the manner provided
for in the Indenture and delivered against payment therefor as provided for in
this Agreement and the applicable Purchase Agreement, if any, such Designated
Notes will have been duly executed, authenticated (assuming due authentication
by the Trustee), issued and delivered and will constitute legal, valid and
binding obligations of the Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws affecting enforcement of
creditors' rights generally, by general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law) or by an
implied covenant of good faith and fair dealing; and the Designated Notes
conform in all material respects to the description thereof contained in the
Prospectus.
(g) The Company has all of the requisite corporate power and authority
to execute and deliver the Indenture and to perform its obligations provided for
therein; the Indenture has been duly authorized, executed and delivered by the
Company, will be substantially in the form heretofore delivered to the Agents
and assuming due execution and delivery by the Trustee, will constitute
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a legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other similar laws affecting enforcement of creditors' rights
generally, by general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) or by an implied covenant of
good faith and fair dealing; and the Indenture conforms in all material respects
to the description thereof contained in the Prospectus.
(h) The Company and each of its subsidiaries (as defined in Rule 405
of the 1933 Act Regulations) ("Subsidiaries") have been duly incorporated and
are validly existing as corporations in good standing under the laws of their
respective jurisdictions of incorporation, are duly qualified to do business and
are in good standing as foreign corporations in each jurisdiction in which their
respective ownership or lease of property or the conduct of their respective
businesses requires such qualification (except where the failure to be so
qualified or be in good standing would not have, individually or in the
aggregate, a material adverse effect on the business or financial condition of
the Company and Subsidiaries taken as a whole), and have all power and authority
necessary to own or hold their respective properties and to conduct the business
in which they are engaged.
(i) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued, are fully paid and non-assessable;
and all of the issued shares of capital stock of each Subsidiary have been duly
and validly authorized and issued and are fully paid, non-assessable and (except
for directors' qualifying shares) owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims (except for such
liens, encumbrances, equities or claims arising as a matter of law that would
not have a material adverse effect on the business or financial condition of the
Company and Subsidiaries taken as a whole).
(j) The issuance, sale and delivery of the Designated Notes, the
execution, delivery and performance of this Agreement, the Indenture, the Notes
and each applicable Purchase Agreement (collectively, "Operative Documents"),
the compliance by the Company with the terms therein and the consummation by the
Company of the transactions contemplated hereby, thereby and by the Registration
Statement do not and will not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its Subsidiaries is a party or by
which the Company or any of its Subsidiaries is bound or to which any of the
property or assets of the Company or any Subsidiaries is subject, (ii) result in
any violation of the provisions of the charter or by-laws of the Company or
(except for any violation the result of
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which would not be material to the Company and Subsidiaries taken as a whole and
would not adversely affect the consummation of the transactions contemplated
hereby and thereby) any Subsidiaries or (iii) result in the violation of any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any Subsidiaries or any of their
properties the result of which violation would be material to the Company and
Subsidiaries taken as a whole or would adversely affect the consummation of the
transactions contemplated hereby or thereby. Except (i) for such consents,
approvals, authorizations, registrations or qualifications as may be required
under applicable state or foreign securities laws and (ii) such consents,
approvals, authorizations, registrations and qualifications as have been
obtained or made and are in full force and effect at the applicable
Representation Date, no consent, approval, authorization or order of, or filing
or registration with, any such court or governmental agency or body is required
for the valid authorization, issuance, sale and delivery of the Designated Notes
or the authorization, execution, delivery and performance of this Agreement and
the applicable Purchase Agreement, if any, by the Company and the consummation
of the transactions contemplated hereby and thereby. No consent, approval,
authorization or order of, or filing or registration with, any such court or
governmental agency or body is required for the due authorization, execution,
delivery and performance of the Indenture and the consummation of the
transactions contemplated thereby.
(k) Other than rights in favor of Newell Co. which have been waived or
satisfied in respect of the Registration Statement, there are no contracts,
agreements or understandings between the Company and any person granting such
person the right to require the Company to file a registration statement under
the Act with respect to any securities of the Company owned or to be owned by
such person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration statement filed
by the Company under the Act.
(l) Neither the Company nor any Subsidiary has sustained, since the
date of the latest audited financial statements included or incorporated by
reference in the Prospectus, any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree,
material, individually or in the aggregate, to the Company and Subsidiaries
taken as a whole, otherwise than as set forth or contemplated in the Prospectus;
and, since such date, there has not been any change in the capital stock or debt
of the Company or any Subsidiaries otherwise than in the ordinary course of
business or any material adverse change, or any development reasonably likely to
involve a prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and Subsidiaries taken as a whole, otherwise than as
set forth or contemplated in the Prospectus.
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(m) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or included or
incorporated by reference in the Prospectus present, and will present, as of the
applicable Representation Date and at all times during each Marketing Period,
fairly the financial condition and results of operations of the entities
purported to be shown thereby, at the dates and for the periods indicated, and
have been, and will be, as of the the applicable Representation Date and at all
times during each Marketing Period, prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved, except as otherwise stated therein.
(n) Ernst & Young LLP, who have certified certain financial
statements of the Company and whose report appears in the Prospectus or is
incorporated by reference therein, are (and were at the time such reports were
issued) independent public accountants as required by the Act and the 1933 Act
Regulations.
(o) The Company and each of the Subsidiaries own or possess adequate
rights to use all patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service mark registrations, copyrights and
licenses necessary and material to the conduct of their respective businesses as
now being conducted except when the failure to own or possess adequate rights to
use any such patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service mark registrations, copyrights or
licenses would not have, individually or in the aggregate, a material adverse
effect on the business or financial condition of the Company and Subsidiaries
taken as a whole and have no reason to believe that the conduct of their
respective businesses as now being conducted conflict with, and have not
received any notice of any claim of conflict with, the rights of others in
respect thereof except for any such conflict or claim of conflict which is not
reasonably likely to have, individually or in the aggregate, a material adverse
effect on the business or financial condition of the Company and Subsidiaries
taken as a whole.
(p) Except as described in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any Subsidiaries is a
party or of which any property of the Company or any Subsidiaries is the subject
which are reasonably likely to have a material adverse effect on the
consolidated financial position, stockholders' equity, results of operations,
business or prospects of the Company and Subsidiaries taken as a whole; and to
the best of the Company's knowledge, except as described in the Prospectus, no
such proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(q) There are no contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the Registration Statement
by the Act or by the 1933 Act Regulations which have not been described in the
Prospectus or
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filed as exhibits to the Registration Statement or incorporated therein by
reference as permitted by the 1933 Act Regulations.
(r) Neither the Company nor any Subsidiaries (i) is in violation of
its charter or by-laws, (ii) is in default in any material respect, and no event
has occurred which, with notice or lapse of time or both, would constitute such
a default, in the due performance or observance of any term, covenant or
condition contained in any material agreement, indenture or instrument, or (iii)
is in violation in any material respect of any law, ordinance, governmental
rule, regulation or court decree to which it or its property may be subject or
has failed to obtain any material license, permit, certificate, franchise or
other governmental authorization or permit necessary to the ownership of its
property or to the conduct of its business, except, in the case of clauses (ii)
and (iii), for any such defaults, violations or failures which, individually or
in the aggregate, would not have a material adverse effect on the business or
financial condition of the Company and Subsidiaries taken as a whole.
SECTION 2. SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL
(a) Appointment. Subject to the terms and conditions stated herein, the
Company hereby appoints each of the Agents as the non-exclusive agent of the
Company for the purpose of soliciting or receiving offers to purchase the Notes
from the Company by others. On the basis of the representations and warranties
contained herein, but subject to the terms and conditions herein set forth, each
Agent agrees, as the non-exclusive agent of the Company, to use its reasonable
best efforts to solicit offers to purchase the Notes upon the terms and
conditions set forth in the Prospectus. Each Agent also may purchase Notes from
the Company as principal for purposes of resale, as more fully described in
paragraph (e) of this Section. The Company may offer the Notes for sale from
time to time otherwise than through an Agent. However, so long as this Agreement
is in effect the Company shall not solicit offers to purchase Notes through an
agent without (i) amending this Agreement to appoint such agent as an additional
Agent hereunder on the same terms and conditions as provided herein for the
Agents (the consent of the then current Agents shall not be necessary for such
purpose) and (ii) delivering 2 days prior written notice thereof to the Agents.
Notwithstanding the foregoing, the Company may provide copies of the Prospectus,
any Prospectus Supplement and any Pricing Supplement to an agent (other than an
Agent) who has made or conveyed an offer with respect to the purchase of Notes,
and accept offers to purchase Notes through an agent other than an Agent,
provided in each case that (i) the Company shall not have solicited such offers,
(ii) the Company and such agent shall have executed an agreement with respect to
such purchases having the same terms and conditions (including, without
limitation, commission and discount rates) other than immaterial changes as
those which would apply to such purchases under this Agreement if such agent
were an Agent (which may be accomplished by incorporating by reference in such
agreement the terms and conditions of this Agreement) and (iii) the
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Company shall provide the Agents with a copy of such agreement promptly
following the execution thereof.
(b) Suspension of Solicitation. The Company reserves the right, in its sole
discretion, to suspend solicitation of offers to purchase the Notes commencing
at any time for any period of time or indefinitely. Upon receipt of at least one
business day's prior written notice from the Company, the Agents will suspend
solicitation of offers to purchase Notes from the Company until such time as the
Company has advised the Agents that such solicitation may be resumed. For the
purpose of the foregoing sentence, "business day" shall mean any day which is
not a Saturday or Sunday and which is not a day on which (i) banking
institutions are generally authorized or obligated by law to close in The City
of New York and (ii) The New York Stock Exchange, Inc. is closed for trading.
Upon receipt of notice from the Company as contemplated by Section
3(c) hereof, each Agent shall suspend its solicitation of offers to purchase
Notes until such time as the Company shall have furnished it with an amendment
or supplement to the Registration Statement or the Prospectus, as the case may
be, contemplated by Section 3(c) and shall have advised such Agent that the
solicitation may be resumed.
(c) Agent's Commission. Promptly upon the closing of the sale of any
Notes sold by the Company as a result of a solicitation made by or offer to
purchase received by an Agent, the Company agrees to pay such Agent a
commission, in the form of a discount, in accordance with the schedule relating
to each series of Notes set forth in Exhibit A hereto.
(d) Solicitation of Offers. The Agents are authorized to solicit offers to
purchase the Notes only in denominations as are specified in the Prospectus at a
purchase price as shall be specified by the Company. Each Agent shall
communicate to the Company, orally or in writing, each reasonable offer to
purchase Notes received by it as an Agent. The Company shall have the sole right
to accept offers to purchase the Notes and may reject any such offer in whole or
in part. Each Agent shall have the right, in its discretion reasonably exercised
without advising the Company, to reject any offer to purchase the Notes received
by it, in whole or in part, and any such rejection shall not be deemed a breach
of its agreement contained herein.
No Note which the Company has agreed to sell pursuant to this
Agreement shall be deemed to have been purchased and paid for, or sold by the
Company, until the Note shall have been delivered against payment therefor.
(e) Purchases as Principal. Each sale of Notes to any Agent as principal,
for resale to one or more investors or to another broker dealer (acting as
principal for purposes of resale), shall be made in accordance with the terms of
this Agreement and a Purchase Agreement whether oral (and confirmed in writing
by such
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Agent to the Company, which may be by facsimile transmission) or in writing,
which will provide for the sale of such Notes to, and the purchase thereof by,
the Agent. A Purchase Agreement may also specify certain provisions relating to
the reoffering of such Notes by such Agent. The commitment of any Agent to
purchase Notes from the Company as principal shall be deemed to have been made
on the basis of the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions herein set forth.
Each Purchase Agreement shall specify the principal amount and terms of the
Notes to be purchased by an Agent, the time and date (each such time and date
being referred to herein as a "Time of Delivery") and place of delivery of and
payment for such Notes and such other information (as applicable) as is set
forth in Exhibit C hereto. The Company agrees that if any Agent purchases Notes
as principal for resale such Agent shall receive such compensation, in the form
of a discount or otherwise, as shall be indicated in the applicable Purchase
Agreement or, if no compensation is indicated therein, a commission in
accordance with Exhibit A hereto. Any Agent may utilize a selling or dealer
group in connection with the resale of such Notes. In addition, any Agents may
offer the Notes it has purchased as principal to other dealers. Any Agent may
sell Notes to any dealer at a discount and, unless otherwise specified in the
applicable Pricing Supplement, such discount allowed to any dealer will not be
in excess of 66 2/3% of the discount to be received by such Agent from the
Company. The Purchase Agreement shall also specify any requirements for
delivery of opinions of counsel, accountant's letters and officers' certificates
pursuant to Section 5 hereof.
(f) Administrative Procedures. Administrative procedures respecting the
sale of Notes (the "Procedures") are set forth in Exhibit B hereto and may be
amended in writing from time to time by the Agents and the Company. Each Agent
and the Company agree to perform the respective duties and obligations
specifically provided to be performed by each of them herein and in the
Procedures. The Procedures shall apply to all transactions contemplated
hereunder including sales of Notes to any Agent as principal pursuant to a
Purchase Agreement, unless otherwise set forth in such Purchase Agreement.
(g) Delivery of Documents. The documents required to be delivered by
Section 5 hereof shall be delivered at the offices of Simpson Thacher &
Bartlett, 425 Lexington Avenue, New York, New York 10017, not later than 10:00
A.M., New York City time, on the date of this Agreement or at such later time as
may be mutually agreed upon by the Company and the Agents, which in no event
shall be later than the time at which the Agents commence solicitation of offers
to purchase Notes hereunder (the "Closing Date").
SECTION 3. COVENANTS OF THE COMPANY
The Company covenants and agrees:
(a) Delivery of Signed Registration Statement. To furnish promptly to
the Agents and to their counsel a signed copy of the
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Registration Statement as originally filed and each amendment or supplement
thereto.
(b) Delivery of Other Documents. To deliver promptly to the Agents, and in
such number as they may request, each of the following documents: (i) conformed
copies of the Registration Statement (excluding exhibits other than the
computation of the ratio of earnings to fixed charges, the Indenture, this
Agreement and such other exhibits that the Agents may request), (ii) the basic
prospectus as supplemented by the Prospectus Supplement, (iii) each Prospectus
and (iv) any documents incorporated by reference in the Prospectus.
(c) Revisions to Prospectus--Material Changes. If, during any Marketing
Period, any event occurs as a result of which the Prospectus would include an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, not misleading, or if it is necessary at any
time to amend any Prospectus to comply with the Act, to notify the Agents
promptly, in writing, to suspend solicitation of purchases of the Notes; and if
the Company shall decide to amend or supplement the Registration Statement or
any Prospectus, to promptly advise the Agents by telephone (with confirmation in
writing) and to promptly, in writing, prepare and file with the Commission an
amendment or supplement which will correct such statement or omission or an
amendment which will effect such compliance; provided, however, that if during
the period referred to above any Agent shall own any Notes which it has
purchased from the Company as principal with the intention of reselling them,
the Company shall promptly prepare and timely file with the Commission any
amendment or supplement to the Registration Statement or any Prospectus that
may, in the judgment of the Company or the Agents, be required by the Act or
that is requested by the Commission.
(d) Commission Filings. To timely file with the Commission during any
Marketing Period, all documents (and any amendments to previously filed
documents) required to be filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act.
(e) Copies of Filings with Commission. Prior to or contemporaneously with
filing with the Commission during any Marketing Period, (i) any amendment or
supplement to the Registration Statement, (ii) any amendment or supplement to
any Prospectus or (iii) any document incorporated by reference in any of the
foregoing or any amendment of or supplement to any such incorporated document,
to furnish a copy thereof to the Agents.
(f) Notice to Agent of Certain Events. To advise the Agents immediately (i)
when any post-effective amendment to the Registration Statement relating to or
covering the Notes becomes effective, (ii) of any request or proposed request by
the Commission for an amendment or supplement to the Registration Statement, to
any Prospectus, to any document incorporated by reference in any of the
foregoing or for any additional information and the Company will afford the
Agents a reasonable opportunity to
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comment on any such proposed amendment or supplement, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or any part thereof or any order directed to any
Prospectus or any document incorporated therein by reference or the initiation
or threat of any stop order proceeding or of any challenge to the accuracy or
adequacy of any document incorporated by reference in any Prospectus, (iv) of
receipt by the Company of any notification with respect to the suspension of the
qualification of the Notes for sale in any jurisdiction or the initiation or
threat of any proceeding for that purpose, (v) of any downgrading in the rating
of the Notes or any other debt securities of the Company, or any proposal to
downgrade the rating of the Notes or any other debt securities of the Company,
by any "nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt securities
of the Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading of such rating)
as soon as the Company learns of any such downgrading, proposal to downgrade or
public announcement and (vi) of the happening of any event which makes untrue
any statement of a material fact made in the Registration Statement or any
Prospectus or which requires the making of a change in the Registration
Statement or any Prospectus in order to make any material statement therein not
misleading.
(g) Stop Orders. If, during any Marketing Period, the Commission shall
issue a stop order suspending the effectiveness of the Registration Statement,
to make every reasonable effort to obtain the lifting of that order at the
earliest possible time.
(h) Earnings of Statements. As soon as practicable, but not later than 18
months, after the date of each acceptance by the Company of an offer to purchase
Notes hereunder, to make generally available to its security holders an earnings
statement covering a period of at least 12 months beginning after the later of
(i) the effective date of the Registration Statement, (ii) the effective date of
the most recent post-effective amendment to the Registration Statement to become
effective prior to the date of such acceptance, and (iii) the date of the
Company's most recent Annual Report on Form 10-K filed with the Commission prior
to the date of such acceptance which will satisfy the provisions of Section
11(a) of the Act (including, at the option of the Company, Rule 158 of the 1933
Act Regulations);
(i) Copies of Reports, Releases and Financial Statements. So long as any of
the Notes are outstanding, to furnish to the Agents, not later than the time the
Company makes the same generally available to others, copies of all public
reports or releases and all reports and financial statements furnished by the
Company to any securities exchange on which the Notes are listed pursuant to
requirements of or agreements with such exchange or to the Commission pursuant
to the Exchange Act or any rule or regulation of the Commission thereunder.
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(j) Blue Sky Qualifications. To endeavor, in cooperation with the Agents,
to qualify the Notes for offering and sale under the securities laws of such
jurisdictions located within the United States and foreign countries as the
Agents may designate, and to maintain such qualifications in effect for as long
as may be required for the distribution of the Notes; and to file such
statements and reports as may be required by the laws of each jurisdiction in
which the Notes have been qualified as above provided.
(k) Holdback. Between the date of a Purchase Agreement and the date of
delivery of the Notes with respect thereto, the Company will not offer or sell,
or enter into any agreement to sell, any debt securities of the Corporation
similar to the Notes that are the subject of the Purchase Agreement, other than
the private placement of securities and issuances of its commercial paper.
(l) Pricing Supplement. To prepare, with respect to any Notes to be
sold through or to the Agents pursuant to this Agreement, a Pricing Supplement
with respect to such Notes in a form previously approved by the Agents and to
file such Pricing Supplement pursuant to Rule 424 under the Act with the
Commission./*/
(m) Use of Proceeds. The Company will use the proceeds received from the
sale of the Notes in the manner specified in the Prospectus.
(n) Securities Exchange Listing. If any Notes are to be listed on a
securities exchange, the Company will use its best efforts to cause such Notes
to be so listed, subject only to official notice of issuance.
SECTION 4. PAYMENT OF EXPENSES
The Company will pay:
(i) the costs incident to the authorization, issuance, sale and
delivery of the Notes and any taxes payable in that connection,
(ii) the costs incident to the preparation, printing and filing of the
Registration Statement (including the basic prospectus and each Prospectus)
and any amendments and exhibits thereto,
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/*/ If clause (b)(3) of Rule 424 is applicable, such filing shall be made
no later than the fifth business day following the earlier of the date of
determination of the settlement information described below or the date such
Pricing Supplement is first used. If clause (b)(2) or (b)(5) of Rule 424 is
applicable, such filing shall be made no later than the second business day
following the earlier of the date of determination of the settlement information
or the date such Pricing Supplement is first used.
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<PAGE>
(iii) the costs incident to the preparation, printing and filing of any
document and any amendments and exhibits thereto required to be filed by
the Company under the Exchange Act,
(iv) the costs of distributing the Registration Statement as originally
filed and each amendment thereto and any post-effective amendments thereof
(including, in each case, exhibits), the basic prospectus as supplemented
by the Prospectus Supplement, each Prospectus, any supplement or amendment
to any Prospectus and any documents incorporated by reference in any of the
foregoing documents, all as provided in this Agreement,
(v) the fees and disbursements of the Trustee, any paying agent, any
calculation agent, any exchange rate agent and any other agents appointed
by the Company, and their respective counsel,
(vi) the applicable costs and fees in connection with the listing of
the Notes on any securities exchange,
(vii) the cost and fees in connection with any required filings with
the National Association of Securities Dealers, Inc.,
(viii) the fees and disbursements of counsel to the Company and counsel
to the Agents,
(ix) the fees paid to rating agencies in connection with the rating of
the Notes,
(x) the fees and expenses of qualifying the Notes under the securities
laws of the several jurisdictions as provided in Section 3(j) and of
preparing and printing a Blue Sky Memorandum and a memorandum concerning
the legality of the Notes as an investment (including related fees and
expenses of counsel for the Agents in connection therewith),
(xi) all advertising expenses in connection with the offering of the
Notes incurred with the consent of the Company,
(xii) the cost of printing certificates representing the Notes,
(xiii) the cost and charges of The Depository Trust Company, Inc. and
its nominee in connection with the Notes, including the book-entry
ownership system for the Notes, to the extent that the Notes are to be
delivered in book-entry form,
(xiv) the costs of duplicating this Agreement, and
(xv) all other costs and expenses arising out of the transactions
contemplated hereunder and incident to the
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performance of the Company's obligations under this Agreement or otherwise
in connection with the activities of the Agents under this Agreement.
SECTION 5. CONDITIONS OF OBLIGATIONS OF AGENT
The obligation of the Agents, as agents of the Company, under this
Agreement to solicit offers to purchase the Notes, the obligation of any person
who has agreed to purchase Notes to make payment for and take delivery of such
Notes, and the obligation of any Agent to purchase Notes pursuant to any
Purchase Agreement, is subject to the accuracy, on each Representation Date, of
the representations and warranties of the Company contained herein, to the
accuracy of the statements of the Company's officers made in any certificate
furnished pursuant to the provisions hereof, to the performance by the Company
of its obligations hereunder, and to each of the following additional terms and
conditions:
(a) Registration Statement. The Prospectus as amended or supplemented
(including the Pricing Supplement) with respect to such Notes shall have been
filed with the Commission pursuant to Rule 424(b) under the Act within the
applicable time period prescribed for such filing by the 1933 Act Regulations
and in accordance with Section 3(l) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof nor any order
directed to any document incorporated by reference in any Prospectus shall have
been issued and no stop order proceeding shall have been initiated or threatened
by the Commission and no challenge shall have been made to the accuracy or
adequacy of any document incorporated by reference in any Prospectus; any
request of the Commission for inclusion of additional information in the
Registration Statement or any Prospectus or otherwise shall have been complied
with; and the Company shall not have filed with the Commission any amendment or
supplement to the Registration Statement or any Prospectus (or any document
incorporated by reference therein) without the consent of the Agents.
(b) No Suspension of Sale of the Notes. No order suspending the sale of
the Notes in any jurisdiction designated by the Agents pursuant to Section 3(j)
hereof shall have been issued, and no proceeding for that purpose shall have
been initiated or threatened.
(c) No Material Omissions or Untrue Statements. The Agents shall not have
discovered and disclosed to the Company that the Registration Statement or any
Prospectus contains an untrue statement of a fact which, in the opinion of
counsel for the Agents, is material or omits to state a fact which, in the
opinion of such counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(d) Legal Matters Satisfactory to Counsel. All corporate proceedings and
other legal matters incident to the authorization, form and validity of this
Agreement, the Notes, the Indenture, the form of the Registration Statement,
each Prospectus (other than
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financial statements and other financial data) and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall be
satisfactory in all respects to counsel for the Agents and the Company shall
have furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(e) Opinion of Company Counsel. At the Closing Date, the Agents shall have
received the opinion, addressed to the Agents and dated the Closing Date, of
Miles & Stockbridge, a Professional Corporation, counsel to the Company, in form
and substance satisfactory to the Agents and their counsel, to the effect that:
(i) The Company and each of the Subsidiaries listed on Schedule 1 to
such counsel's opinion (the "Principal Subsidiaries") have been duly
incorporated and are validly existing as corporations in good standing
under the laws of their respective jurisdictions of incorporation, are duly
qualified to do business and are in good standing as foreign corporations
in each jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses require such
qualifications (other than those jurisdictions in which the failure to so
qualify would not have a material adverse effect on the Corporation and its
Subsidiaries taken as a whole), and have all corporate power and authority
necessary to own or hold their respective properties and conduct the
businesses in which they are engaged;
(ii) The Company has the requisite corporate power and authority to
issue and deliver the Notes in a form contemplated by the Indenture. The
Designated Notes covered by an applicable Purchase Agreement, if any, are
in a form contemplated by the Indenture and have been duly authorized by
the Company (subject to the determination of certain terms and conditions
by duly authorized officers of the Company) and, assuming the Designated
Notes have been authenticated in accordance with the terms of the Indenture
and delivered to and paid for in accordance with the terms of this
Agreement as supplemented by the applicable Purchase Agreement, if any, and
when the terms of the Designated Notes and of their issue and sale have
been duly established in accordance with the Indenture and this Agreement,
such Designated Notes will be legal, valid and binding obligations of the
Company, entitled to the benefits provided by the Indenture and enforceable
against the Company in accordance with their terms;
(iii) The Company has the requisite corporate power and authority to
execute, deliver and perform its obligations under the Indenture. The
Indenture has been duly authorized, executed and delivered by the Company
and is the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms;
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<PAGE>
(iv) The Indenture has been qualified under the Trust Indenture Act;
(v) The Company has the requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement and the
applicable Purchase Agreement, if any. This Agreement and the applicable
Purchase Agreement, if any, have been duly authorized, executed and
delivered by the Company;
(vi) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and non-
assessable; and all of the issued shares of capital stock of each Principal
Subsidiary have been duly and validly authorized and issued and are fully
paid, non-assessable and (except for directors' qualifying shares) owned
directly and indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims except for such liens, encumbrances,
equities or claims as would not have a material adverse effect on the
business or financial condition of the Company and its Subsidiaries taken
as a whole;
(vii) To such counsel's knowledge and other than as set forth in the
Prospectus, there are no legal or governmental proceedings pending to which
the Company or any of its Subsidiaries is a party or of which any property
of the Company or any of its Subsidiaries is the subject which are
reasonably likely to have a material adverse effect on the consolidated
financial position, stockholders' equity, results of operations, business
or prospects of the Company and its Subsidiaries taken as a whole; and, to
such counsel's knowledge, except as described in the Prospectus, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(viii) The Registration Statement was declared effective under the Act
as of the date and time specified in such opinion and no stop orders
suspending the effectiveness of the Registration Statement has been issued
and, to the knowledge of such counsel, no proceeding for that purpose is
pending or threatened by the Commission;
(ix) The Registration Statement and the Prospectus (other than the
financial statements and related schedules and other financial data and
statistical data therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the Act
and the 1933 Act Regulations; and the documents incorporated by reference
in the Prospectus (other than the financial statements and related
schedules and other financial data and statistical data therein, as to
which such counsel need express no opinion), when they became effective or
were filed with the Commission, as the case may be, complied as to form
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<PAGE>
in all material respects with the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder;
(x) The statements with respect to United States federal tax
considerations for holders of Notes contained in the Prospectus under the
heading "Certain United States Tax Consequences," while not purporting to
discuss all possible tax consequences, insofar as they describe federal
statutes, rules and regulations, constitute a fair summary thereof;
(xi) To such counsel's knowledge, there are no contracts or other
documents which are required to be described in the Prospectus or filed as
exhibits to the Registration Statement by the Act or by the 1933 Act
Regulations which have not been described or filed as exhibits to the
Registration Statement or incorporated therein by reference as permitted by
the 1933 Act Regulations;
(xii) The execution, delivery and performance of the Indenture, this
Agreement, the applicable Purchase Agreement, and the Notes (and the
issuance and sale of the Notes), if any, the compliance by the Company with
the terms therein and the consummation by the Company of the transactions
contemplated hereby, thereby and by the Registration Statement will not (i)
to such counsel's knowledge, conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its Subsidiaries is
subject the effect of which breach or violation would be material to the
Company and its Subsidiaries as a whole or would adversely affect the
consummation of the transactions contemplated hereby or thereby, (ii)
result in any violation of the provisions of the charter or bylaws of the
Company or any of its Subsidiaries or (iii) to such counsel's knowledge,
result in any violation of any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Company or any of its Subsidiaries or any of their properties the effect of
which violation would be material to the Company and its Subsidiaries as a
whole or would adversely affect the consummation of the transactions
contemplated hereby or thereby. Except (i) for the registration of the
Designated Notes under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
the Exchange Act, the Trust Indenture Act and applicable state or foreign
securities laws and (ii) such consents, approvals, authorizations,
registrations and qualifications as have been obtained or made and are in
full force and effect at the applicable Time of Delivery, to such counsel's
knowledge no consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is
required for the valid authorization, issuance, sale and delivery of the
Designated Notes or the authorization, execution, delivery and
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<PAGE>
performance of this Agreement and the applicable Purchase Agreement, if
any, by the Company and the consummation of the transactions contemplated
hereby and thereby or for the due authorization, execution, delivery and
performance of the Indenture and the consummation of the transactions
contemplated thereby.
(xiii) To such counsel's knowledge, other than rights in favor of Newell
Co. which have been waived or satisfied in respect of the Registration
Statement, there are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to file a registration statement under the Act with respect to any
securities of the Company owned or to be owned by such person or to require
the Company to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Act.
(xiv) The statements set forth in the Prospectus as amended or
supplemented under the captions "Description of Debt Securities" and
"Description of Notes" insofar as they constitute summaries of documents,
are accurate in all material respects; and the Indenture and the Designated
Notes covered by the applicable Purchase Agreement, if any, conform in all
material respects to the descriptions thereof in the Prospectus and the
applicable Prospectus Supplement.
In rendering such opinion such counsel may state that their opinion is
limited to matters governed by the Federal laws of the United States of America
and the laws of the States of Maryland and New York. As to matters governed by
the laws of the State of New York, Miles & Stockbridge, a Professional
Corporation may rely on the opinion of Simpson Thacher & Bartlett, counsel to
the Agents. In addition, Miles & Stockbridge, a Professional Corporation shall
state that, while they have not themselves checked the accuracy and completeness
of or otherwise verified, and are not passing upon and assume no responsibility
for the accuracy or completeness of, the statements contained in the
Registration Statement or the Prospectus, except to the limited extent stated in
paragraphs (x) and (xiv) above, in the course of their review and discussion of
the contents of the Registration Statement and Prospectus with certain officers
and employees of the Company and its independent auditors but without
independent check or verification, no facts have come to their attention which
cause them to believe that (a) the Registration Statement, including the
documents incorporated by reference therein (other than the financial statements
and schedules and other financial data and statistical data contained or
incorporated by reference therein or omitted therefrom, as to which such counsel
need express no view), at the time the same became effective, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein not
misleading, or (b) the Prospectus, including the documents
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incorporated by reference therein (other than the financial statements and
schedules and other financial data and statistical data contained or
incorporated by reference therein or omitted therefrom, as to which such counsel
need express no view), relating to the Designated Notes on the date of such
Prospectus and at the applicable Time of Delivery contained or contains any
untrue statement of a material fact or omits to state a material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they are made, not misleading.
In rendering the foregoing opinion, such counsel may also state that the
opinions in paragraphs (ii) and (iii) above are subject to the qualification
that the enforceability of the Company's obligations under the Indenture and the
Designated Notes may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other similar laws relating to or
affecting creditors' rights generally, by general equitable principles
(regardless of whether such enforceability is considered a proceeding in equity
or at law) and by an implied covenant in good faith of their dealing.
(f) Officers' Certificate. The Company shall have furnished to the Agents
on the Closing Date a certificate, dated the Closing Date, of its President or a
Vice President and its Treasurer or an Assistant Treasurer stating that:
(i) The representations, warranties and agreements of the Company in
Section 1 hereof are true and correct as of the Closing Date; the Company
has complied with all its agreements contained herein; and the conditions
set forth in Sections 5(a), 5(b) and 5(i)(iv) hereof have been fulfilled;
and
(ii) They have carefully examined the Registration Statement and the
Prospectus and, in their opinion, (A) the Registration Statement, as of its
effective date, did not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, (B) the Prospectus does not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading and (C) since the effective date of the Registration
Statement there has not occurred any event required to be set forth in an
amended or supplemented prospectus which has not been so set forth.
(g) Accountant's Letter. The Company shall furnish the Agents on the
Closing Date a letter of Ernst & Young L.L.P. addressed jointly to the Company
and the Agents and dated the Closing Date, of the type described in the American
Institute of Certified Public Accountants Statement on Auditing Standards No.
72, in form and substance reasonably satisfactory to the Agents confirming that
they are independent accountants within the meaning
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of the Act and the applicable 1933 Act Regulations and containing statements
and information of the type ordinarily included in an accountant's "comfort
letter" to agents with respect to financial statements and certain financial
information contained in the Registration Statement and the Prospectus,
including the documents incorporated by reference therein.
(h) The Agents shall have received from Simpson Thacher & Bartlett, counsel
to the Agents, such opinion or opinions, dated the Closing Date, with respect to
the issuance and sale of the Notes, the Indenture, the Registration Statement,
the Prospectus and other related matters as the Agents may reasonably require,
and the Company shall have furnished to such counsel such documents as they may
request for the purpose of enabling them to pass upon such matters.
(i) Additional Conditions. There shall not have occurred: (i) any change
in the capital stock or debt of the Company or any of its Subsidiaries or any
change, or any development involving a prospective change, in or affecting the
general affairs, management, stockholders' equity, business, properties,
condition (financial or other), results of operations or prospects of the
Company and its Subsidiaries that in the opinion of the Agents, materially
impairs the investment quality of the Notes; (ii) a suspension or material
limitation in trading in securities generally on the New York Stock Exchange,
the American Stock Exchange or the over-the-counter market or the establishment
of minimum prices on such exchanges or such market by the Commission, by such
exchange or by any other regulatory body or governmental authority having
jurisdiction; (iii) a general moratorium on commercial banking activities
declared by Federal or New York State authorities; (iv) any downgrading in the
rating accorded the Company's debt securities by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of the Company (other
than an announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (v) any outbreak or
escalation of major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national calamity or
emergency; or (vi) any material adverse change in the existing financial,
political or economic conditions in the United States, including any effect of
international conditions on the financial markets in the United States, that in
the judgment of the Agents makes it impracticable or inadvisable to proceed with
the solicitation of offers to purchase Notes or the purchase of Notes from the
Company as principal pursuant to the applicable Purchase Agreement, as the case
may be.
(j) Securities Exchange Listings. If the Designated Notes are to be listed
on a securities exchange, such Designated Notes shall have been duly authorized
for listing on such securities exchange, subject to official notice of issuance
thereof and notice of a satisfactory distribution of the Designated Notes.
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(k) Other Information and Documentation. Prior to the Closing Date, the
Company shall have furnished to the Agents such further information,
certificates and documents as the Agents or counsel to the Agents may reasonably
request.
SECTION 6. ADDITIONAL COVENANTS OF THE COMPANY.
The Company covenants and agrees that:
(a) Acceptance Affirms Representations and Warranties. Each acceptance by
it of an offer for the purchase of Notes shall be deemed to be an affirmation
that the representations and warranties of the Company contained in this
Agreement and in any certificate theretofore given to the Agents pursuant hereto
are true and correct at the time of such acceptance, and an undertaking that
such representations and warranties will be true and correct at the time of
delivery to the purchaser or his agent of the Notes relating to such acceptance
as though made at and as of each such time (and such representations and
warranties shall relate to the Registration Statement and the Prospectus as
amended or supplemented to each such time).
(b) Subsequent Delivery of Officers' Certificates. The Company agrees that
during each Marketing Period, each time that the Registration Statement or any
Prospectus shall be amended or supplemented (other than by a Pricing Supplement
providing solely for the interest rates, maturities or other terms and
conditions of the Notes or the principal amount of Notes remaining to be sold or
similar changes), each time the Company sells Notes to an Agent as principal and
the applicable Purchase Agreement specifies the delivery of an officers'
certificate under this Section 6(b) as a condition to the purchase of Notes
pursuant to such Purchase Agreement or the Company files with the Commission any
document incorporated by reference into any Prospectus (other than a Current
Report on Form 8-K to report on the closing contemplated by this Agreement or
the Sale of Notes thereunder), the Company shall submit to the Agents a
certificate, (i) as of the date of such amendment, supplement, Time of Delivery
relating to such sale or filing, or (ii) if such amendment, supplement or filing
was not filed during a Marketing Period, as of the first day of the next
succeeding Marketing Period, representing that the statements contained in the
certificate referred to in Section 5(f) hereof which was last furnished to the
Agents are true and correct at the time of such amendment, supplement or filing,
as the case may be, as though made at and as of such time (except that such
statements shall be deemed to relate to the Registration Statement and each
Prospectus as amended and supplemented to such time).
(c) Subsequent Delivery of Legal Opinions. The Company agrees that during
each Marketing Period, each time that the Registration Statement or any
Prospectus shall be amended or supplemented (other than by a Pricing Supplement
providing solely for the interest rates, maturities or other terms and
conditions of the Notes or the principal amount of Notes remaining to be sold or
similar changes), each time the Company sells Notes to an Agent as principal and
the applicable Purchase Agreement specifies the delivery of a legal opinion
under this Section 6(c) as a condition to the purchase of Notes pursuant
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to such Purchase Agreement or the Company files with the Commission any document
incorporated by reference into any Prospectus (other than a Current Report on
Form 8-K to report on the closing contemplated by this Agreement or the sale of
the Notes thereunder), the Company shall, (i) concurrently with such amendment,
supplement, Time of Delivery relating to such sale or filing, or (ii) if such
amendment, supplement or filing was not filed during a Marketing Period, on the
first day of the next succeeding Marketing Period, furnish the Agents with the
written opinion of Miles & Stockbridge, a Professional Corporation, addressed to
the Agents and dated the date of delivery of such opinion, in form satisfactory
to the Agents, of the same effect as the opinion referred to in Section 5(e)
hereof, but modified, as necessary, to relate to the Registration Statement and
each Prospectus as amended or supplemented to the time of delivery of such
opinion; provided, however, that in lieu of such opinion, such counsel may
furnish the Agents with a letter to the effect that the Agents may rely on such
prior opinion to the same extent as though it was dated the date of such letter
authorizing reliance (except that statements in such prior opinion shall be
deemed to relate to the Registration Statement and each Prospectus as amended or
supplemented to the time of delivery of such letter authorizing reliance).
(d) Subsequent Delivery of Accountant's Letters. The Company agrees that
during each Marketing Period, each time that the Registration Statement or any
Prospectus shall be amended or supplemented to include additional financial
information, each time the Company sells Notes to an Agent as principal and the
applicable Purchase Agreement specifies the delivery of a letter under this
Section 6(d) as a condition to the purchase of Notes pursuant to such Purchase
Agreement or the Company files with the Commission any document incorporated by
reference into any Prospectus which contains additional financial information,
the Company shall cause Ernst & Young L.L.P. (or other independent accountants
of the Company acceptable to the Agents) to furnish the Agents, (i) concurrently
with such amendment, supplement, Time of Delivery relating to such sale or
filing, or (ii) if such amendment, supplement, or filing was not filed during a
Marketing Period, on the first day of the next succeeding Marketing Period, a
letter, addressed jointly to the Company and the Agents and dated the date of
delivery of such letter, in form and substance reasonably satisfactory to the
Agents, of the same effect as the letter referred to in Section 5(g) hereof but
modified to relate to the Registration Statement and each Prospectus, as amended
and supplemented to the date of such letter, with such changes as may be
necessary to reflect changes in the financial statements and other information
derived from the accounting records of the Company; provided, however, that if
the Registration Statement or any Prospectus is amended or supplemented solely
to include financial information as of and for a fiscal quarter, such
accountants may limit the scope of such letter to the unaudited financial
statements included in such amendment or supplement unless there is contained
therein any other accounting, financial or statistical information that, in the
reasonable judgment of the Agents, should be covered by such letter, in which
event such letter shall also cover such other information.
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<PAGE>
(e) Opinion on Settlement Date. On any settlement date for the sale of
Notes, the Company shall, if requested by the Agent that solicited or received
the offer to purchase the Notes being delivered on such settlement date, furnish
such Agent with a written opinion of counsel for the Company, dated such
settlement date, in form satisfactory to the Agent, to the effect set forth in
Section 5(e) hereof, but modified, as appropriate, to relate to the Prospectus
relating to the Notes to be delivered on such settlement date; provided,
however, that in lieu of such opinion, such counsel may furnish the Agents with
a letter to the effect that the Agents may rely on such prior opinion to the
same extent as though it was dated such settlement date (except that statements
in such prior opinion shall be deemed to relate to the Registration Statement
and such Prospectus as amended or supplemented to the time of delivery of such
letter authorizing reliance).
SECTION 7. INDEMNIFICATION AND CONTRIBUTION
(a) Indemnification of Agent. The Company shall indemnify and hold
harmless each Agent and each person, if any, who controls any Agent within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of Notes), to which that
Agent or controlling person may become subject, under the Act, the Exchange Act
or otherwise, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon (i) any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement as originally filed or
any amendment thereof or any Preliminary Prospectus or Prospectus, or any
amendment or supplement to any of the foregoing or (ii) the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and shall reimburse
each Agent and each controlling person promptly upon demand for any legal or
other expenses reasonably incurred by the Agent or controlling person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of, or
is based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made (a) in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement in reliance upon
and in conformity with written information furnished to the Company through, by
or on behalf of any Agent specifically for inclusion therein or (b) in that part
of the Registration Statement which constitutes the Statement of Eligibility and
Qualification on Form T-1 of any Trustee under the Trustee Indenture Act (except
for statements or omissions made in such Statement in reliance upon information
furnished to the Trustee by or on behalf of the Company for inclusion therein).
Notwithstanding the foregoing, it is understood that, as to any preliminary
Prospectus this indemnity agreement shall not inure to
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<PAGE>
the benefit of any Agent or person who controls that Agent on account of any
loss, claim, damage, liability or action arising from the sale of Notes to any
person by that Agent if that Agent failed to send or give a copy of the
Prospectus, as the same may be amended or supplemented, to that person within
the time required by the Act, and the untrue statement or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact in such Preliminary Prospectus was corrected in the Prospectus, unless such
failure resulted from noncompliance by the Company with Section 3(b). For
purposes of the second proviso to the immediately preceding sentence, the term
Prospectus shall not be deemed to include the documents incorporated therein by
reference, and no Agent shall be obligated to send or give any supplement or
amendment to any document incorporated by reference in any Preliminary
Prospectus or any Prospectus to any person other than a person to whom such
Agent had delivered such incorporated document or documents in response to a
written request therefor. The foregoing indemnity agreement is in addition to
any liability which the Company may otherwise have to any Agent or controlling
person.
(b) Indemnification of the Company. Each Agent, severally and not jointly,
shall indemnify and hold harmless the Company, each of its directors, each of
its officers who signed the Registration Statement and each person who controls
the Company within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company or any such
director, officer or controlling person may become subject, under the Act or the
Exchange Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement as
originally filed or any amendment thereof, or any Preliminary Prospectus or the
Prospectus, or in any amendment or supplement to any of the foregoing or (ii)
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, but
in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company through, by or on
behalf of that Agent specifically for inclusion therein, and shall reimburse
promptly upon demand the Company or any such director, officer or controlling
person for any legal or other expenses reasonably incurred by the Company and
any such director, officer or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any Agent may
otherwise have to the Company or any such director, officer or controlling
person.
(c) Notice. Promptly after receipt by an indemnified party under this
Section of notice of any claim or the commencement of
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<PAGE>
any action, the indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under this Section, notify the indemnifying
party in writing of the claim or the commencement of that action; provided,
however, that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section, except to the extent it
has been materially prejudiced by such failure and, provided, further, that the
failure to notify the indemnifying party shall not relieve the indemnifying
party from any liability which it may have to an indemnified party otherwise
than under this Section. If any such claim or action shall be brought against
an indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel satisfactory to the indemnified party.
After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section for any legal or
other expenses subsequently incurred by the indemnified party in connection with
the defense thereof other than reasonable costs of investigation; provided,
however, that the Agents shall have the right to employ counsel to represent
jointly the Agents and their controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Agents against the Company under this Section if, in the reasonable judgment of
the Agents, it is advisable for the Agents and their controlling persons to be
jointly represented by separate counsel and in that event the fees and expenses
of such separate counsel shall be paid by the Company. No indemnifying party
shall be liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but if
settled with its written consent or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(d) Contribution. If the indemnification provided for in this Section 7
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 7(a) or 7(b) hereof in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred to
therein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company on the one hand and the Agents on the other
from the offering of the Notes 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 the Agents on the
other with respect to the statements or omissions which resulted in such loss,
claim, damage
- 26 -
<PAGE>
or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Agents on the other with respect to an offering of Notes shall
be deemed to be in the same proportion as the total net proceeds from such
offering of Notes (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Agents with
respect to such Notes, in each case as set forth on the cover page of the
applicable Prospectus. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or the Agents, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Agents agree that it would not be just and
equitable if contributions pursuant to this Section 7(d) were to be determined
by pro rata allocation (even if the Agents were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 7(d) shall be
deemed to include, for purposes of this Section 7(d), 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 Section 7(d), no Agent shall be required to contribute any
amount in excess of the amount by which the total price at which the Notes sold
through such Agent and distributed to the public were offered to the public
exceeds the amount of any damages which the Agent has otherwise paid or become
liable to pay by reason of any 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 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 7(d), each person, if any, who controls an Agent within the meaning
of Section 15 of the Act or Section 20(a) of the Exchange Act shall have the
same rights to contribution as such Agent, and each person, if any, who controls
the Company within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to clauses (i) and (ii) of the
first sentence of this Section 7(d). Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for a contribution may
be made against another party or parties from whom contribution may be sought,
notify such other party or parties, provided, however, that the omission to so
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any obligation it or they may have under this
Section 7(d) except to the extent such party or parties has or have been
materially prejudiced by such failure, and
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provided, further that the failure to notify a party or parties from whom
contribution may be sought shall not relieve such party or parties from any
contribution obligation otherwise than under this Section 7. No party shall be
liable for contribution with respect to any action or claim settled without its
consent; provided, however, that such consent was not unreasonably withheld. The
Agents' obligations to contribute as provided in this Section 7(d) are several
and not joint.
SECTION 8. STATUS OF EACH AGENT
In soliciting offers to purchase the Notes from the Company pursuant to
this Agreement (other than in respect of any Purchase Agreement), each Agent is
acting individually and not jointly and is acting solely as agent for the
Company and not as principal. Each Agent will make reasonable efforts to assist
the Company in obtaining performance by each purchaser whose offer to purchase
Notes from the Company has been solicited by such Agent and accepted by the
Company but such Agent shall have no liability to the Company in the event any
such purchase is not consummated for any reason. If the Company shall default
in its obligations to deliver Notes to a purchaser whose offer it has accepted,
the Company shall hold the Agents harmless against any loss, claim or damage
arising from or as a result of such default by the Company.
SECTION 9. REPRESENTATIONS, WARRANTIES AND OBLIGATIONS TO SURVIVE DELIVERY
The respective indemnities, agreements, representations, warranties and
other statements of the Company and the Agents contained in this Agreement, or
made by or on behalf of them, respectively, pursuant to this Agreement, shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of any Agent or any person controlling any Agent or by or
on behalf of the Company, and shall survive each delivery of and payment for any
of the Notes.
SECTION 10. TERMINATION
This Agreement may be terminated for any reason with respect to any party
hereto, at any time, by any party hereto upon the giving of one day's written
notice of such termination to the other parties hereto; provided, however, if
such terminating party is an Agent, such termination shall be effective only
with respect to such terminating party. If, at the time of a termination, an
offer to purchase any of the Notes has been accepted by the Company but the time
of delivery to the purchaser has not occurred, the provisions of this Agreement
shall remain in effect subject to the conditions set forth herein until such
Notes are delivered. Notwithstanding the foregoing, the provisions of Sections
2(c), 3(d), 3(h), 3(i), 4, 7, 8 and 9 hereof shall survive any termination of
this Agreement.
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SECTION 11. SALES OF NOTES DENOMINATED IN A FOREIGN CURRENCY AND INDEXED
NOTES
If at any time the Company and any of the Agents shall determine to issue
and sell Notes denominated in a currency or currency unit other than U.S.
Dollars, which other currency may include a composite currency, or with respect
to which an index is used to determine the amounts of payments of principal and
any premium or interest, the Company and any such Agent shall execute and
deliver an Amendment (a "Foreign Currency Amendment" or "Indexed Note
Amendment," as the case may be) in the form attached hereto as Exhibit D. Such
amendment shall establish, as appropriate additions and modifications that shall
apply to the sales, whether offered on an agency or principal basis, of the
Notes covered thereby. The Agents are authorized to solicit offers to purchase
Notes with respect to which an index is used to determine the amounts of
payments of principal and any premium and interest, and the Company shall agree
to any sales of such Notes (whether offered on an agency or principal basis),
only in a minimum aggregate amount of $10,000,000.
SECTION 12. NOTICES
Except as otherwise provided herein, all notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to an
Agent shall be directed to it as follows: Lehman Brothers Inc., 3 World
Financial Center, New York, New York 10285, Attention: Medium Term Note
Department, 9th Floor; Telephone No.: (212) 526-8400; Telecopy No.: (212) 528-
7035; Citicorp Securities, Inc., 399 Park Avenue, New York, New York 10043;
Telephone No.: (212) 291-7231; Telecopy No.: (212) 291-3910; Goldman, Sachs &
Co., 85 Broad Street, New York, New York 10004, Attention: Credit Department;
Telephone No.: (212) 902-1031; Telecopy No.: (212) 363-7609; Morgan Stanley &
Co. Incorporated, 1221 Avenue of the Americas, New York, New York 10020,
Attention: Manager - Continuously Offered Securities; Telephone No.: (212) 296-
6700; Telecopy No.: (212) 764-7490; NationsBanc Capital Markets, Inc., 100 North
Tryon Street, NC1-007-06-07, Charlotte, North Carolina 28255, Attention: Tom
Mooney; Telephone No.: (704) 386-9690; Telecopy No.: (704) 388-9212; Salomon
Brothers Inc, Seven World Trade Center, New York, New York 10048, Attention:
Medium Term Note Group; Telephone No.: (212) 783-6848; Telecopy No. (212) 783-
2274; notices to the Company shall be directed to it as follows: The Black &
Decker Corporation, 701 East Joppa Road, Towson, Maryland 21286, Attention:
Treasurer; Telephone No.: (410) 716-3900; Telecopy No.: (410) 716-3778.
SECTION 13. BINDING EFFECT; BENEFITS
This Agreement shall be binding upon each Agent, the Company, and their
respective successors. This Agreement and the terms and provisions hereof are
for the sole benefit of only those persons, except that (a) the representations,
warranties, indemnities and agreements of the Company contained in this
Agreement shall also be
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deemed to be for the benefit of the person or persons, if any, who control any
Agent within the meaning of Section 15 of the Act, and (b) the indemnity
agreement of the Agents contained in Section 7 hereof shall be deemed to be for
the benefit of directors of the Company, officers of the Company who have signed
the Registration Statement and any person controlling the Company. Nothing in
this Agreement is intended or shall be construed to give any person, other than
the person referred to in this Section, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein.
SECTION 14. GOVERNING LAW; COUNTERPARTS
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York. This Agreement may be executed in counterparts
and the executed counterparts shall together constitute a single instrument.
SECTION 15. PARAGRAPH HEADINGS
The paragraph headings used in this Distribution Agreement are for
convenience of reference only, and are not to affect the construction hereof or
be taken into consideration in the interpretation hereof.
If the foregoing correctly sets forth our agreement, please indicate your
acceptance hereof in the space provided for that purpose below.
Very truly yours,
THE BLACK & DECKER CORPORATION
By: /s/ Charles E. Fenton
--------------------------------
Authorized Signatory
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CONFIRMED AND ACCEPTED,
as of the date first above written:
LEHMAN BROTHERS INC.
By: /s/ Herbert McDade
---------------------------------
Authorized Signatory
CITICORP SECURITIES, INC.
By: /s/ Kimberly A. Conyngham
---------------------------------
Authorized Signatory
/s/ Goldman, Sachs & Co.
- - ------------------------------------
(GOLDMAN, SACHS & CO.)
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Steven B. Fitzpatrick
---------------------------------
Authorized Signatory
NATIONSBANC CAPITAL MARKETS, INC.
By: /s/ Lynn T. McConnell
---------------------------------
Authorized Signatory
SALOMON BROTHERS INC
By: /s/ Pamela Kendall
---------------------------------
Authorized Signatory
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Exhibit 4(a)
================================================================================
THE BLACK & DECKER CORPORATION
Issuer
and
MARINE MIDLAND BANK
Trustee
-------------
INDENTURE
Dated as of September 9, 1994
-------------
Debt Securities
================================================================================
<PAGE>
TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions....................................... 1
SECTION 102. Compliance Certificates and Opinions.............. 10
SECTION 103. Form of Documents Delivered to Trustee............ 10
SECTION 104. Acts of Holders................................... 11
SECTION 105. Notices........................................... 13
SECTION 106. Notice to Holders; Waiver......................... 13
SECTION 107. Conflict with Trust Indenture Act................. 14
SECTION 108. Effect of Headings and Table of Contents.......... 14
SECTION 109. Successors and Assigns............................ 15
SECTION 110. Separability Clause............................... 15
SECTION 111. Benefits of Indenture............................. 15
SECTION 112. Governing Law..................................... 15
SECTION 113. Non-Business Day.................................. 15
SECTION 114. Immunity of Incorporators, Stockholders,
Employees, Officers and Directors................. 15
SECTION 115. Certain Matters Relating to Currencies............ 16
SECTION 116. Language of Notices, Etc.......................... 16
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms of Securities............................... 16
SECTION 202. Form of Trustee's Certificate of Authentication... 17
SECTION 203. Securities in Global Form......................... 17
ARTICLE THREE
THE SECURITIES
SECTION 301. Title, Payment and Terms.......................... 18
SECTION 302. Denominations and Currencies...................... 22
SECTION 303. Execution, Authentication, Delivery and Dating.... 22
SECTION 304. Temporary Securities and Exchange of Securities... 23
SECTION 305. Registration, Registration of Transfer and
Exchange.......................................... 28
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities
and Coupons....................................... 31
SECTION 307. Payment of Interest; Interest Rights
Preserved......................................... 32
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SECTION 308. Persons Deemed Owners............................. 35
SECTION 309. Cancellation...................................... 35
SECTION 310. Computation of Interest........................... 36
SECTION 311. Currency and Manner of Payments in Respect of
Securities........................................ 36
SECTION 312. Appointment and Resignation of Currency
Determination Agent............................... 40
ARTICLE FOUR
SATISFACTION, DISCHARGE AND DEFEASANCE
SECTION 401. Satisfaction and Discharge of Securities of any
Series Under Limited Circumstances................ 41
SECTION 402. Satisfaction and Discharge........................ 42
SECTION 403. Defeasance of Certain Obligations................. 45
SECTION 404. Application of Trust Money........................ 47
SECTION 405. Repayment to Company.............................. 47
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default................................. 48
SECTION 502. Acceleration...................................... 49
SECTION 503. Other Remedies.................................... 50
SECTION 504. Waiver of Past Defaults........................... 50
SECTION 505. Control by Majority............................... 50
SECTION 506. Limitation on Suits............................... 50
SECTION 507. Rights of Holders to Receive Payment.............. 51
SECTION 508. Collection Suit by Trustee........................ 51
SECTION 509. Trustee May File Proofs of Claim.................. 51
SECTION 510. Priorities........................................ 52
SECTION 511. Undertaking for Costs............................. 52
SECTION 512. Judgment Currency................................. 52
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities............... 53
SECTION 602. Notice of Defaults................................ 54
SECTION 603. Certain Rights of Trustee......................... 55
SECTION 604. May Hold Securities............................... 56
SECTION 605. Money Held in Trust............................... 56
SECTION 606. Compensation and Reimbursement.................... 57
SECTION 607. Disqualification; Conflicting Interests........... 58
SECTION 608. Corporate Trustee Required, Different Trustees
for Different Series; Eligibility................. 58
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SECTION 609. Resignation and Removal, Appointment of
Successor......................................... 59
SECTION 610. Acceptance of Appointment by Successor............ 60
SECTION 611. Merger, Conversion, Consolidation or Succession
to Business....................................... 62
SECTION 612. Preferential Collection of Claims Against
Company........................................... 62
SECTION 613. Authenticating Agents............................. 62
SECTION 614. Reports by Trustee to Holders..................... 64
ARTICLE SEVEN
MERGER, CONSOLIDATION, CONVEYANCE OR TRANSFER
SECTION 701. Where Company May Merge, Etc...................... 64
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 801. Supplemental Indentures Without Consent of
Holders........................................... 64
SECTION 802. Supplemental Indentures With Consent of
Holders........................................... 66
SECTION 803. Execution of Supplemental Indentures.............. 67
SECTION 804. Effect of Supplemental Indentures................. 67
SECTION 805. Conformity With Trust Indenture Act............... 68
SECTION 806. Reference in Securities to Supplemental
Indentures........................................ 68
ARTICLE NINE
COVENANTS
SECTION 901. Certain Definitions............................... 68
SECTION 902. Payment of Securities............................. 69
SECTION 903. Limitation on Liens............................... 70
SECTION 904. Limitation on Sale-Leaseback Transactions......... 71
SECTION 905. No Lien Created, etc.............................. 71
SECTION 906. Compliance Certificate............................ 71
SECTION 907. Commission Reports................................ 72
SECTION 908. Money for Securities Payments to Be Held in
Trust............................................. 72
SECTION 909. Maintenance of Office or Agency................... 74
ARTICLE TEN
REDEMPTION OF SECURITIES
SECTION 1001. Applicability of This Article..................... 75
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SECTION 1002. Election to Redeem; Notice to Trustee............. 76
SECTION 1003. Selection by Trustee of Securities to Be
Redeemed.......................................... 76
SECTION 1004. Notice of Redemption.............................. 76
SECTION 1005. Deposit of Redemption Price....................... 77
SECTION 1006. Securities Payable on Redemption Date............. 78
SECTION 1007. Securities Redeemed in Part....................... 79
ARTICLE ELEVEN
HOLDERS' MEETINGS
SECTION 1101. Purposes of Meetings.............................. 79
SECTION 1102. Call of Meetings by Trustee....................... 80
SECTION 1103. Call of Meetings by Company or Holders............ 80
SECTION 1104. Qualifications for Voting......................... 80
SECTION 1105. Regulations....................................... 80
SECTION 1106. Voting............................................ 81
SECTION 1107. No Delay of Rights by Meeting..................... 82
</TABLE>
EXHIBIT A. Form of Certificate to Be Delivered to Euroclear or CEDEL,
S.A. by or on behalf of a Beneficial Owner of Securities in
Order to Receive a Definitive Bearer Security in Exchange
for an Interest in a Temporary Global Security or to
Exchange an Interest in a Temporary Global Security for an
Interest in a Permanent Global Security in Definitive Form.
EXHIBIT B. Form of Certificate to Be Given to the Appropriate Trustee
by Euroclear and CEDEL, S.A. Regarding the Exchange of a
Temporary Global Security for Definitive Securities or for a
Portion of a Permanent Global Security in Definitive Form.
EXHIBIT C. Form of Certificate to Be Given to the Appropriate Trustee
by Euroclear and CEDEL, S.A. Regarding Payments on a
Temporary Global Security Prior to an Exchange Date.
EXHIBIT D. Form of Certificate to be Delivered to Euroclear to CEDEL,
S.A. by or on behalf of a Beneficial Owner of Securities, in
Order to Receive Payment on a Temporary Global Security
Prior to an Exchange Date.
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INDENTURE dated as of September 9, 1994, between The Black & Decker
Corporation, a Maryland corporation (the "Company"), and Marine Midland Bank, a
banking corporation and trust company organized under the laws of the State of
New York, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other party and, as to
each series of Securities, for the equal and ratable benefit of the Holders of
that series of the Company's Securities issued pursuant to this Indenture:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture and all Securities issued hereunder,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States, and the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally
accepted in the United States at the date or time of such computation;
(4) the words "herein," "hereof" and "hereunder," and other words of
similar import, refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(5) any gender used in this Indenture shall be deemed to include the
neuter, masculine or feminine genders; and
(6) provisions apply to successive events and transactions.
Certain terms, used principally in Article Three, Article Six and Article
Nine, are defined in those Articles.
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"Act," when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control," "controlling" and "controlled" by, when used with respect to any
specified Person, means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise.
"Attributable Debt" has the meaning specified in Section 901.
"Authenticating Agent" means any individual authorized to authenticate and
deliver Securities in the name of the Trustee for the Securities of any series
pursuant to Section 613.
"Authorized Newspaper" means a newspaper customarily published at least
once a day for at least five days in each calendar week and of general
circulation in New York City and in London and, if and so long as the Securities
are listed on the Stock Exchange and the Stock Exchange shall so require, in
Luxembourg or, if it shall be impracticable in the opinion of the Trustee for
the Securities of the appropriate series to make such publication, in another
capital city in Western Europe. Such publication (which may be in different
newspapers) is expected to be made in the Eastern edition of The Wall Street
Journal and in the London edition of the Financial Times, and, if and so long as
the Securities are listed on the Stock Exchange and the Stock Exchange shall so
require, in the Luxemburger Wort.
"Bankruptcy Law" has the meaning specified in Section 501.
"Bearer Security" means any Security established pursuant to Section 201
which is payable to bearer.
"Board of Directors" means the board of directors of the Company or any
committee of that board.
"Board Resolution" means a resolution of the Board of Directors or of a
committee or person to which or to whom the Board of Directors has properly
delegated the appropriate authority, a copy of which has been certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification and delivered to the Trustee.
"Business Day," when used with respect to any particular Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment are authorized or obligated
by law to close, and shall otherwise mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions, at the
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place where any specified act pursuant to this Indenture is to occur, are
authorized or obligated by law to close.
"CEDEL, S.A." means Centrale de Livraison de Valeurs Mobilieres, S.A.
"Certificate of a Firm of Independent Public Accountants" means a
certificate signed by any firm of independent public accountants of recognized
standing selected by the Company. The term "Independent" when used with respect
to any specified firm of public accountants means a firm that is or would be
qualified to act as the Company's accountants within the meaning of Section
210.2-01 of Regulation S-X as promulgated by the Commission, and any successor
thereto.
"Code" means the Internal Revenue Code of 1986, as amended, and the
regulations thereunder.
"Commission" means the United States Securities and Exchange Commission.
"Company" means the Person named as the "Company" in the first paragraph of
this Indenture until a successor shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor.
"Company Request" and "Company Order" mean, respectively, a written request
or order signed in the name of the Company by (1) the Chairman of the Board, the
Vice Chairman of the Board, the President or any Vice President of the Company
and by the Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, the Secretary or an Assistant Secretary of the Company or (2) any
two Persons designated in a Company Order previously delivered to the Trustee
for Securities of any series by any two of the foregoing officers and delivered
to the Trustee for Securities of that series.
"Component Currency" has the meaning specified in Section 311(h).
"Consolidated Net Tangible Assets" has the meaning specified in Section
901.
"Conversion Date" has the meaning specified in Section 311(d).
"Conversion Event" means, in the good faith judgment of the Company, the
unavailability of any Foreign Currency or currency unit, due to the imposition
of exchange controls or other circumstances beyond the control of the Company.
"Corporate Trust Office" means the office of the Trustee for Securities of
any series at which at any particular time its corporate trust business shall be
principally administered, which
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office of Marine Midland Bank, at the date of the execution of this Indenture,
is located at 140 Broadway, New York, New York 10005.
"Corporation" includes corporations, limited liability companies,
associations, companies and business trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Currency Determination Agent," with respect to Securities of any series,
means a New York Clearing House bank designated pursuant to Section 301 or
Section 312.
"Default" means any event that is, or after notice or passage of time or
both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series issuable
or issued in the form of a global Security, the Person designated as Depositary
by the Company pursuant to Section 301 with respect to that series until a
successor Depositary shall have been appointed pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder with respect to that series.
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 311(g).
"Dollar Equivalent of the Foreign Currency" has the meaning specified in
Section 311(f).
"Dollars" and the sign "$" mean the currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 311(h).
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels office, or its successor, as operator of the Euroclear system.
"Event of Default" has the meaning specified in Section 501.
"Exchange Date" has the meaning specified in Section 304.
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"Exchange Rate Officers' Certificate" means a certificate or facsimile
thereof setting forth (i) the applicable Market Exchange Rate and (ii) the
Dollar, Foreign Currency or currency unit amounts of principal (and premium, if
any) and interest, if any (on an aggregate basis and on the basis of a Security
having the lowest denomination principal amount determined in accordance with
Section 302 in the relevant currency or currency unit), payable with respect to
a Security of any series on the basis of such Market Exchange Rate, signed by
the Treasurer, the Controller, any Vice President, any Assistant Treasurer or
any Assistant Controller of the Company.
"Exempted Debt" has the meaning specified in Section 901.
"Floating Rate Security" means a Security that provides for the payment of
interest at a variable rate determined periodically by reference to an interest
rate index or any other index specified pursuant to Section 301.
"Foreign Currency" means a currency issued and actively maintained as a
country's or countries' recognized unit of domestic exchange by the government
of any country other than the United States.
"Funded Debt" has the meaning specified in Section 901.
"Global Exchange Agent" has the meaning specified in Section 304.
"Government Obligations" means the following obligations: (i) direct
obligations of the government that issued the currency in which the Securities
of a particular series are payable or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the government that
issued the currency in which the Securities of such series are payable, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation of such government.
"Holder," when used with respect to any Security, means in the case of a
Registered Security the Person in whose name a Security is registered in the
Security Register, and in the case of a Bearer Security the bearer thereof and,
when used with respect to any coupon, means any bearer thereof.
"Indenture" means this instrument as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of
a particular series of Securities established as contemplated by Section 301.
"Interest," when used with respect to an Original Issue Discount Security
that by its terms bears interest only after Maturity, means interest payable
after Maturity.
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"Interest Payment Date," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Market Exchange Rate" means (i) for any conversion involving a currency
unit on the one hand and Dollars or any Foreign Currency on the other, the
exchange rate between the relevant currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to Section 301 for the
Securities of the relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon (New York City time) buying rate for such Foreign
Currency for cable transfers quoted in New York City as certified for customs
purposes by the Federal Reserve Bank of New York, (iii) for any conversion of
one Foreign Currency into Dollars or another Foreign Currency, the spot rate at
noon local time in the relevant market at which, in accordance with normal
banking procedures, the Dollars or Foreign Currency into which conversion is
being made could be purchased with the Foreign Currency from which conversion is
being made from major banks located in either New York City, London or any other
principal market for Dollars or such purchased Foreign Currency, in each case
determined by the applicable Currency Determination Agent in its sole discretion
and without liability on its part. In the event of the unavailability of any of
the exchange rates provided for in the foregoing clauses (i), (ii) and (iii) the
Currency Determination Agent shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank of New York as
of the most recent available date, or quotations from one or more major banks in
New York City, London or any other principal market for such currency or
currency unit in question, or such other quotations as the Currency
Determination Agent shall deem appropriate. Unless otherwise specified by the
Currency Determination Agent, if there is more than one market for dealing in
any currency or currency unit by reason of foreign exchange regulations or
otherwise, the market to be used in respect 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. For purposes of this
definition, a "nonresident issuer" shall mean an issuer that is not a resident
of the country or countries that issue such currency or whose currencies are
included in such currency unit.
"Maturity," when used with respect to any Security, means the date on which
the principal of that Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption, request for redemption or otherwise.
"Officer" means the Chairman of the Board, the Vice Chairman of the Board,
the President, any Vice President, the Treasurer or the Secretary of the
Company.
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"Officers' Certificate" means a Certificate signed by two Officers or by an
Officer and any Assistant Treasurer or Assistant Secretary of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel to the Company or may be other counsel satisfactory to
the Trustee for the Securities of any series.
"Original Issue Discount Security" means any Security that provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding," when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(1) Securities theretofore cancelled by the Trustee for such
Securities or delivered to the Trustee for cancellation;
(2) Securities or portions thereof for whose payment or redemption
money in the necessary amount and in the required currency or currency unit
has been theretofore deposited with the Trustee for such Securities or any
Paying Agent (other than the Company or any other obligor upon the
Securities) in trust or set aside and segregated in trust by the Company or
any other obligor upon the Securities (if the Company or any other obligor
upon the Securities shall act as its own Paying Agent) for the Holders of
such Securities; provided, however, that, if such Securities or portions
thereof are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture, or provision therefor satisfactory to the
Trustee has been made; and
(3) Securities that have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented proof satisfactory to the
Trustee for such Securities that any such Securities are held by bona fide
holders in due course;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (a) Securities
owned by the Company or any other obligor upon the Securities or any Subsidiary
of the Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee for such Securities
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities that a Responsible Officer
of the Trustee knows to be so owned shall be so disregarded. Securities so
owned
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that have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so to
act with respect to such Securities and that the pledgee is not the Company or
any other obligor upon the Securities or any Subsidiary of the Company or such
other obligor and (b) the principal amount of an Original Issue Discount
Security that shall be deemed to be Outstanding for such purposes shall be the
amount of the principal thereof that would be due and payable as of the date of
such determination upon a declaration of acceleration pursuant to Section 502.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest, if any, on any Securities on
behalf of the Company.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any
particular series, means the place or places where the principal of (and
premium, if any) and interest, if any, on the Securities of that series are
payable, as contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by that
particular Security, and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in lieu of a mutilated, destroyed,
lost or stolen Security or a Security to which a mutilated, destroyed, lost or
stolen coupon appertains shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Security or the Security to which the
mutilated, destroyed, lost or stolen coupon appertains, as the case may be.
"Principal Property" has the meaning specified in Section 901.
"Redemption Date," when used with respect to any Security to be redeemed in
whole or in part, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price," when used with respect to any Security to be redeemed,
means an amount in the currency or currency unit in which such Security is
denominated or which is otherwise provided for pursuant hereto, equal to the
principal amount thereof (and premium, if any, thereon) together with accrued
interest, if any, to the Redemption Date.
"Registered Security" means any Security established pursuant to Section
201 that is registered in the Security Register.
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"Regular Record Date" for the interest payable on any Interest Payment Date
on the Registered Securities of any series, means the date, if any, specified
for that purpose as contemplated by Section 301.
"Responsible Officer," when used with respect to the Trustee for any series
of Securities, means any officer of the Trustee with direct responsibility for
the administration of this Indenture, and also means, with respect to a
particular corporate trust matter, any other officer or employee to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Securities" means securities evidencing indebtedness of the Company
authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
A "series" of Securities means all Securities denominated as part of the
same series authorized by or pursuant to a particular Board Resolution.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of any series means a date fixed by the Trustee for such
series pursuant to Section 307.
"Specified Amount" has the meaning specified in Section 311(h).
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Stock Exchange," unless specified otherwise with respect to any particular
series of Securities, means the Luxembourg Stock Exchange.
"Subsidiary" has the meaning specified in Section 901.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this Indenture and, subject to the provisions of Section 611 hereof, shall also
include its successors and assigns as Trustee hereunder from and after the time
a successor Trustee shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter "Trustee" shall mean and include each Person
who is then a Trustee hereunder. If there shall be at one time more than one
Trustee hereunder, "Trustee" shall mean each such Trustee and shall apply to
each such Trustee only with respect to those series of Securities with respect
to which it is serving as Trustee.
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"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended by
the Trust Indenture Reform Act of 1990, as in effect (unless otherwise stated
herein) on the date of this Indenture; provided, however, that in the event that
the Trust Indenture Act is hereafter amended, "Trust Indenture Act" shall mean,
to the extent required by such amendment, Trust Indenture Act as so amended.
"United States" has the meaning specified in Section 901.
"Valuation Date" has the meaning specified in Section 311(c).
"Voting Stock" has the meaning specified in Section 901.
"Yield to Maturity," when used with respect to any Original Issue Discount
Security, means the yield to maturity, if any, set forth on the face thereof.
SECTION 102. Compliance Certificates and Opinions.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee (i) an
Officers' Certificate stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and (ii) an Opinion of Counsel stating
that, in the opinion of such counsel, all such conditions precedent have been
complied with.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include (i) a statement that the
person making such certificate or opinion has read such certificate or
condition, (ii) 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, (iii) a statement that, in the opinion of such
person, the person has made such examination or investigation as is necessary to
enable the person to express an informed opinion as to whether such covenant or
condition has been complied with, and (iv) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to matters upon which his certificate or opinion is based are
erroneous.
Any such certificate or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the
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Company stating that the information with respect to such factual matters is in
the possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered to
the Trustee for the appropriate series of Securities and, where it is hereby
expressly required, to the Company. Such instrument or instruments and any such
record (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments or so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the holding by any
Person of a Security, shall be sufficient for any purpose of this Indenture and,
subject to Section 601, conclusive in favor of the Trustee for the appropriate
series of Securities, the Company and any agent of such Trustee or the Company,
if made in the manner provided in this Section.
The Company may set a record date for purposes of determining the identity
of Holders of Registered Securities entitled to vote or consent to any action by
vote or consent authorized or permitted under this Indenture, which record date
shall be the later of 30 days prior to the first solicitation of such consent or
the date of the most recent list of Holders furnished to the Trustee prior to
such solicitation. If a record date is fixed, those Persons who were Holders of
Registered Securities at such record date (or their duly designated proxies),
and only those Persons, shall be entitled with respect to such Securities to
take such action by vote or consent or to revoke any vote or consent previously
given, whether or not such Persons continue to be Holders after such record
date.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by
the certificate of any notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged the execution thereof. Where such execution is by an
officer of a corporation or association or a member of a partnership, or an
official of a public or governmental body, on
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behalf of such corporation, association, partnership or public or governmental
body or by a fiduciary, such certificate or affidavit shall also constitute
sufficient proof of this authority.
(c) The fact and date of the execution by any Person of any such instrument
or writing, or the authority of the Person executing the same, may also be
proved in any other manner that the Trustee for the appropriate series of
Securities deems sufficient.
(d) The principal amount and serial numbers of Registered Securities held
by any Person, and the date of holding the same, shall be proved by the Security
Register.
(e) The principal amount and serial numbers of Bearer Securities held by
any Person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee for such Securities to be
satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate of the Person holding
such Bearer Securities, if such certificate is deemed by such Trustee to be
satisfactory. The Trustee for such Securities and the Company may assume that
such ownership of any Bearer Security continues until (1) another certificate
bearing a later date issued in respect of the same Bearer Security is produced,
(2) such Bearer Security is produced to such Trustee by some other Person, (3)
such Bearer Security is surrendered in exchange for a Registered Security or (4)
such Bearer Security is no longer Outstanding. The principal amount and serial
numbers of Bearer Securities held by any Person, and the date of holding the
same, may also be proved in any other manner that the Company and the Trustee
for such Securities deem sufficient.
(f) In determining whether the Holders of the requisite principal amount of
Outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver under this Indenture, the principal amount of an
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 would be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to Section
502 at the time the taking of such action by the Holders of such requisite
principal amount is evidenced to the Trustee for such Securities.
(g) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued upon the registration
of transfer thereof or in exchange therefor or, in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee for such
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Securities, the Security Registrar, any Paying Agent, the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
SECTION 105. Notices.
Any notice or communication shall be sufficiently given if in writing and
delivered in person or mailed by first-class mail addressed as follows:
if to the Company:
The Black & Decker Corporation
701 East Joppa Road
Towson, Maryland 21286
Attention: Treasurer
with a copy to:
The Black & Decker Corporation
701 East Joppa Road
Towson, Maryland 21286
Attention: Vice President and General Counsel
if to the Trustee:
Marine Midland Bank
Corporate Trust Administration
140 Broadway
New York, New York 10005
The Company or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications. If the Trustee
of any series of Securities is other than the Trustee initially named in this
Indenture or any successor thereto, any notice or communication shall be
sufficiently given if in writing and delivered in person or mailed by first
class mail addressed to that Trustee at the address provided for in the
supplemental indenture executed in connection with the appointment of that
Trustee in respect of the applicable series of Securities.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, (1) such
notice shall be sufficiently given (unless otherwise herein expressly provided)
to Holders of Registered Securities if in writing and mailed, first class
postage prepaid, to each Holder affected by such event, at his address as it
appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice and (2)
such notice shall be sufficiently given (unless otherwise herein expressly
provided) to Holders of Bearer Securities who have filed their names and
addresses with the
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Trustee for such purpose within the previous two years if in writing and mailed,
first class postage prepaid, to each such Holder at his address as so filed not
later than the latest date and not earlier than the earliest date prescribed for
the giving of such notice, or to all other Holders of Bearer Securities if
published in an Authorized Newspaper on a Business Day at least twice, the first
such publication to be not earlier than the earliest date, and the second such
publication to be not later than the latest date, prescribed herein for the
giving of such notice.
In any case where notice to Holders of Registered Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice mailed in the manner prescribed by this
Indenture shall be deemed to have been given whether or not received by any
particular Holder. In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give such notice to
Holders of Registered Securities by mail, then such notification as shall be
made with the approval of the Trustee for such Securities shall constitute a
sufficient notification for every purpose hereunder.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be made
with the approval of the Trustee for such Securities shall constitute sufficient
notice to such Holders for every purpose hereunder. Neither the failure to give
notice by publication to Holders of Bearer Securities as provided above, nor any
defect in any notice so published, shall affect the sufficiency of any notice to
Holders of Registered Securities given as provided herein.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee for such
Securities, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties
imposed by any of Sections 310 through 317, inclusive, of the Trust Indenture
Act through the operation of Section 318(c) thereof, such imposed duties shall
control.
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SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
Except as otherwise provided herein, all covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 110. Separability Clause.
In any case any provision in this Indenture or in the Securities or coupons
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities or in any coupons
appertaining thereto, expressed or implied, shall give to any Person, other than
the parties hereto, any Paying Agent, any Security Registrar and their
successors hereunder and the Holders of Securities or coupons, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture shall be governed by and construed in accordance with the
laws of the State of New York.
SECTION 113. Non-Business Day.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of a Security of any particular series shall not be a Business Day at
any Place of Payment with respect to Securities of that series, then
(notwithstanding any other provision of this Indenture or of the Securities or
coupons) payment of principal of (and premium, if any) and interest, if any,
with respect to such Security need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date
or Redemption Date, or at the Stated Maturity, provided that no interest shall
accrue for the period from and after such Interest Payment Date, Redemption Date
or Stated Maturity, as the case may be.
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SECTION 114. Immunity of Incorporators, Stockholders, Employees, Officers and
Directors.
A director, officer, employee, stockholder or incorporator, as such, of the
Company shall not have any liability for any obligation of the Company under the
Securities or the Indenture or for any claim based on, with respect to or by
reason of such obligations or their creation. All such liability is waived and
released as a condition of, and as partial consideration for, the execution of
this Indenture and the issue of the Securities.
SECTION 115. Certain Matters Relating to Currencies.
Subject to Section 311, each reference to any currency or currency unit in
any Security, or in the Board Resolution or supplemental indenture relating
thereto, shall mean only the referenced currency or currency unit and no other
currency or currency unit.
The Trustee shall segregate moneys, funds and accounts held by the Trustee
in one currency or currency unit from any moneys, funds or accounts held in any
other currencies or currency units, notwithstanding any provision herein which
would otherwise permit the Trustee to commingle such amounts.
Whenever any action or Act is to be taken hereunder by the Holders of
Securities denominated in different currencies or currency units, then for
purposes of determining the principal amount of Securities held by such Holders,
the aggregate principal amount of the Securities denominated in a Foreign
Currency or currency unit shall be deemed to be that amount of Dollars that
could be obtained for such principal amount on the basis of a spot rate of
exchange specified to the Trustee for such series in an Officers' Certificate
for such Foreign Currency or currency unit into Dollars as of the date the
taking of such action or Act by the Holders of the requisite percentage in
principal amount of the Securities is evidenced to such Trustee.
SECTION 116. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language, and
any published notice may also be in an official language of the country or
province of publication.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms of Securities.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons shall
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be substantially in such form or forms (including global form) as shall be
established by or pursuant to a Board Resolution, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or any indenture supplemental hereto.
Each security may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required by law, rule
of any securities exchange or to conform to usage. If temporary Securities of
any series are issued in global form as permitted by Section 304, the form
thereof shall be established as provided in the preceding sentence.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
Prior to the first delivery of a Security of any series to the Trustee for
authentication, the Company shall deliver to the Trustee the following:
(1) a copy of the Board Resolution, by or pursuant to which such form
of Security to be endorsed thereon has been approved;
(2) an Officers' Certificate dated the date such Certificate is
delivered to such Trustee stating that all conditions precedent provided
for in this Indenture relating to the authentication and delivery of
Securities in such form have been complied with; and
(3) an Opinion of Counsel stating that each of the Securities,
together with any coupons appertaining thereto, in such form, when (a)
completed by appropriate insertions and executed and delivered by the
Company to such Trustee for authentication in accordance with this
Indenture, (b) authenticated and delivered by such Trustee in accordance
with this Indenture within the authorization as to aggregate principal
amount established from time to time by the Board of Directors, and (c)
sold in the manner specified in such Opinion of Counsel, will be the legal,
valid and binding obligations of the Company, subject to applicable
bankruptcy, reorganization, insolvency, moratorium and other laws generally
affecting creditors' rights, to general equitable principles, to an implied
covenant of good faith and fair dealing, and to such other qualifications
as such counsel shall conclude do not materially affect the rights of
Holders of such Securities.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Certificate of Authentication on all Securities shall be in
substantially the following form:
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"This is one of the Securities of the series designated in, and issued
under, the Indenture described herein.
Marine Midland Bank,
as Trustee
By:
---------------------------------
Authorized Signatory"
SECTION 203. Securities in Global Form.
If any Security of a series is issuable in global form, such Security may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and may also provide that the aggregate
amount of Outstanding Securities represented thereby may from time to time be
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 and in such manner
as shall be specified in such Security. Any instructions by the Company with
respect to a Security in global form, after its initial issuance, shall be in
writing but need not comply with Section 102.
Global Securities may be issued in either registered or bearer form and in
either temporary or permanent form. Permanent global Securities will be issued
in definitive form.
ARTICLE THREE
THE SECURITIES
SECTION 301. Title, Payment and Terms.
The principal amount of Securities that may be authenticated and delivered
and Outstanding under this Indenture is not limited. The Securities may be
issued up to the aggregate principal amount of Securities from time to time
authorized by or pursuant to a Board Resolution.
The Securities may be issued in one or more series, each of which shall be
issued pursuant to a Board Resolution or Board Resolutions that shall specify:
(1) the title of the Securities of that series (which shall
distinguish the Securities of that series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the Securities of
that series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of,
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or in exchange for, or in lieu of, other Securities of that series pursuant
to Section 304, 305, 306, 806 or 1007);
(3) whether Securities of that series are to be issuable as Registered
Securities, Bearer Securities or both;
(4) the date or dates (or manner of determining the same) on which the
principal of the Securities of that series is payable (which, if so
provided in such Board Resolution, may be determined by the Company from
time to time and set forth in the Securities of the series issued from time
to time);
(5) the rate or rates (or the manner of calculation thereof) at which
the Securities of that series shall bear interest (if any), the date or
dates from which such interest shall accrue (which, in either case or both,
if so provided in such Board Resolution, may be determined by the Company
from time to time and set forth in the Securities of the series issued from
time to time), the Interest Payment Dates on which such interest shall be
payable (or the manner of determining the same) and the Regular Record Date
for the interest payable on any Registered Securities on any Interest
Payment Date and the extent to which, or the manner in which, any interest
payable on a temporary global Security on an Interest Payment Date will be
paid if other than in the manner provided in Section 307;
(6) the place or places where, subject to the provisions of Section
909, the principal of (and premium, if any) and interest, if any, on
Securities of that series shall be payable, any Registered Securities of
that series may be surrendered for registration of transfer, any Securities
of that series may be surrendered for exchange, and notices and demands to
or upon the Company in respect of the Securities of that series and this
Indenture may be served;
(7) the period or periods within which, the price or prices at which,
the currency or currency unit in which, and the terms and conditions on
which, Securities of that series may be redeemed or converted into another
security, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of that series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof (or to convert such
Securities into other securities at the option of the Holder), and the
period or periods within which, the price or prices at which, the currency
or currency unit in which, and the terms and conditions upon which,
Securities of that series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
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(9) if denominated in Dollars, the denominations in which any
Registered Securities of that series shall be issuable, if other than
denominations of $1,000 and any multiple thereof, and the denominations in
which any Bearer Securities of that series shall be issuable, if other than
the denomination of $5,000;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of that series which shall be payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
502;
(11) any Events of Default in addition to the Events of Default
described in Section 501 and any covenants of the Company with respect to
the Securities of that series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set forth
herein;
(12) if a Person other than Marine Midland Bank is to act as Trustee
for the Securities of that series, the name and location of the Corporate
Trust Office of such Trustee;
(13) if other than Dollars, the currency or currency unit in which
payment of the principal of (and premium, if any) or interest, if any, on
the Securities of that series shall be made or in which the Securities of
that series shall be denominated (and the denominations thereof) and the
particular provisions applicable thereto in accordance with, in addition to
or in lieu of the provisions of Section 311;
(14) if the principal of (and premium, if any) and interest, if any,
on the Securities of that series are to be payable, at the election of the
Company or a Holder thereof, in a currency or currency unit other than that
in which such Securities are denominated or stated to be payable, in
accordance with provisions in addition to or in lieu of, or in accordance
with the provisions of Section 311, the period or periods within which
(including the Election Date), and the terms and conditions upon which,
such election may be made, and the time and manner of determining the
exchange rate between the currency or currency unit in which such
Securities are denominated or stated to be payable and the currency or
currency unit in which such Securities are to be so payable;
(15) the designation of the original Currency Determination Agent, if
any, with respect to the Securities of that series;
(16) the index, if any, used to determine the amount of payments of
principal of (and premium, if any) or interest, if any, on the Securities
of that series;
(17) if the amount of payments of principal of (and premium, if any)
or interest, if any, on the Securities of
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that series may be determined with reference to an index based on a
currency or currency unit other than that in which such Securities are
denominated, the manner in which such amounts shall be determined;
(18) if other than as set forth in Section 401, provisions for the
satisfaction and discharge of this Indenture with respect to the Securities
of that series;
(19) the provisions, if any, restricting defeasance of the Securities
of that series;
(20) the date as of which any Bearer Securities of that series and any
global Security representing Outstanding Securities of that series shall be
dated if other than the date of original issuance of the first Security of
that series to be issued;
(21) whether the Securities of the series shall be issued in whole or
in part in the form of a global Security or Securities and, in such case,
the Depositary and Global Exchange Agent, if any, for such global Security
or Securities, whether such global form shall be permanent or temporary
and, if applicable, the Exchange Date;
(22) if Securities of the series are to be issuable initially in the
form of a temporary global Security, the circumstances under which the
temporary global Security can be exchanged for definitive Securities and
whether the definitive Securities will be Registered Securities and/or
Bearer Securities and will be in global form and whether interest in
respect of any portion of such global Security payable in respect of an
Interest Payment Date prior to the Exchange Date shall be paid to any
clearing organization with respect to a portion of such global Security
held for its account and, in such event, the terms and conditions
(including any certification requirements) upon which any such interest
payment received by a clearing organization will be credited to the Persons
entitled to interest payable on such Interest Payment Date if other than as
provided in this Article Three;
(23) if convertible into the Securities of another series, the terms
upon which the Securities of that series will be convertible into
Securities of such other series;
(24) if the right of payment with respect to Securities of that series
is subordinated to the right of payment with respect to any other
indebtedness of the Company, the terms and conditions of such
subordination; and
(25) any other terms of that series (which terms shall not be
inconsistent with the provisions of this Indenture).
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All Securities of any particular series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except as to
denomination, rate of interest, Stated Maturity and the date from which
interest, if any, shall accrue, and except as may otherwise be provided in or
pursuant to such Board Resolution relating thereto. The terms of such
Securities, as set forth above, may be determined by one or more authorized
officers of the Company from time to time if so provided in or established
pursuant to the authority granted in a Board Resolution. All Securities of any
one series need not be issued at the same time, and unless otherwise provided, a
series may be reopened for issuance of additional Securities of such series.
SECTION 302. Denominations and Currencies.
Unless otherwise provided with respect to any series of Securities as
contemplated by Section 301, any Registered Securities of a series shall be
issuable in denominations of $1,000 and any multiple thereof and any Bearer
Securities of a series shall be issuable in the denomination of $5,000 and
Registered and Bearer Securities shall be payable in Dollars. References herein
to currencies shall include ECUs, unless otherwise specified or unless the
context otherwise requires.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities and any related coupons shall be executed on behalf of the
Company by two Officers by manual or facsimile signature. The Securities shall
be so executed under the corporate seal of the Company reproduced thereon.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper Officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
A Security shall not be valid until the Trustee manually signs the
Certificate of Authentication on the Security. The signature of the Trustee
shall be conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee shall not be required to authenticate any Securities if the
issuance thereof will adversely affect the Trustee's rights, duties or
immunities under the Securities or this Indenture.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series together with any
coupons appertaining thereto, executed by the Company to the Trustee for the
Securities of such series for authentication, together with a Company Order for
the
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authentication and delivery of such Securities, and such Trustee, in accordance
with the Company Order, shall authenticate and deliver such Securities;
provided, however, that, in connection with its sale, during the "restricted
period" (as defined in Section 1.163-5(c)(2)(i)(D)(7), and any successor
thereto, of the United States Treasury Regulations), no Bearer Security shall be
mailed or otherwise delivered to any location in the United States; and
provided, further that such Bearer Security (other than a temporary global
Security in bearer form) may be delivered outside the United States in
connection with its original issuance only if the Person entitled to receive
such Bearer Security shall have furnished to Euroclear or CEDEL, S.A. a
certificate substantially in the form set forth in Exhibit A to this Indenture.
If any Security shall be represented by a permanent global Security, then, for
purposes of this Section and Section 304, the notation of a beneficial owner's
interest therein upon original issuance of such Security or upon exchange of a
portion of a temporary global Security shall be deemed to be delivery in
connection with the original issuance of such beneficial owner's interest in
such permanent global Security. Except as permitted by Section 306 or 307, the
Trustee for the Securities of a series shall not authenticate and deliver any
Bearer Security unless all appurtenant coupons for interest then matured other
than matured coupons in default have been detached and cancelled. If all the
Securities of any one series are not to be issued at one time and if a Board
Resolution relating to such Securities shall so permit, the Company Order may
set forth procedures acceptable to the Trustee for the issuance of such
Securities, including, without limitation, procedures with respect to interest
rate, Stated Maturity, date of issuance and date from which interest, if any,
shall accrue.
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 Board Resolution, Officers' Certificate and Opinion of Counsel
otherwise required pursuant to Sections 102 and 201 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.
Each Registered Security shall be dated the date of its authentication,
and, unless otherwise specified as contemplated by Section 301, each Bearer
Security shall be dated as of the date of original issuance of the first
Security of such series to be issued.
Each Depositary designated pursuant to Section 301 for a global Security in
registered form must, at the time of its designation and at all times while it
serves as Depositary, be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and any other applicable statute or
regulation.
SECTION 304. Temporary Securities and Exchange of Securities.
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Pending the preparation of definitive Securities of any particular series,
the Company may execute, and upon Company Order the Trustee for the Securities
of such series shall authenticate and deliver, in the manner specified in
Section 303, temporary Securities that are printed, lithographed, typewritten,
photocopied or otherwise produced, in any denomination, with like terms and
conditions as the definitive Securities of the series in lieu of which they are
issued in registered form or, if authorized, in bearer form with one or more
coupons or without coupons, and with such appropriate insertions, omissions,
substitutions and other variations as the Officers executing such Securities may
determine, as evidenced by their execution of such Securities. Any such
temporary Securities may be in global form, representing such of the Outstanding
Securities of such series as shall be specified therein.
Except in the case of temporary Securities in global form (which shall be
exchanged only in accordance with the provisions of the following paragraphs),
if temporary Securities of any particular series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of such definitive Securities, the temporary
Securities of such series shall be exchangeable for such definitive Securities
and of a like Stated Maturity and with like terms and provisions upon surrender
of the temporary Securities of such series, together with all unmatured coupons
and matured coupons in default, if any, at the office or agency of the Company
in a Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any
particular series, the Company shall execute and (in accordance with a Company
Order delivered at or prior to the authentication of the first definitive
Security of such series) the Trustee for the Securities of such series shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations of the same series and of a
like Stated Maturity and with like terms and provisions; provided, however,
unless otherwise specified pursuant to Section 301, no definitive Bearer
Security shall be delivered in exchange for a temporary Registered Security, and
provided, further, that a definitive Bearer Security (including a permanent
global Bearer Security) shall be delivered in exchange for a temporary Bearer
Security only in compliance with the conditions set forth in Section 303. Until
exchanged as hereinabove provided, the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities of the same series and with like terms and conditions,
except as to payment of interest, if any, authenticated and delivered hereunder.
Any temporary global Security and any permanent global Security shall,
unless otherwise provided therein, be delivered to a Depositary designated
pursuant to Section 301.
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Without unnecessary delay but in any event not later than the date
specified in or determined pursuant to the terms of any such temporary global
Security, which (subject to any applicable laws and regulations) shall be 40
days after the closing of the sale of the Securities or within a reasonable
period of time thereafter (the "Exchange Date"), the Securities represented by
any temporary global Security of a series of Securities issuable in bearer form
may be exchanged for definitive Securities (subject to the second succeeding
paragraph), including one or more permanent global Securities in definitive
form, without interest coupons. On or after the Exchange Date, such temporary
global Security shall be surrendered by the Depositary to the Trustee for such
Security, as the Company's agent for such purpose, or the agent appointed by the
Company pursuant to Section 301 to effect the exchange of the temporary global
Security for definitive Securities (including any director or officer of the
Global Exchange Agent authorized by the Trustee as an Authenticating Agent
pursuant to Section 613) (the "Global Exchange Agent"), and following such
surrender, such Trustee or the Global Exchange Agent shall (1) endorse the
temporary global Security to reflect the reduction of its principal amount by an
equal aggregate principal amount of such Security, (2) endorse any applicable
permanent global Security to reflect the initial amount, or an increase in the
amount of Securities represented thereby, (3) manually authenticate such
definitive Securities (including any permanent global Security), (4) subject to
Section 303, either deliver such definitive Securities to the Holder thereof or,
if such definitive Security is a permanent global Security, deliver such
permanent global Security to the Depositary to be held outside the United States
for the accounts of Euroclear and CEDEL, S.A., for credit to the respective
accounts at Euroclear and CEDEL, S.A., designated by or on behalf of the
beneficial owners of such Securities (or to such other accounts as they may
direct) and (5) redeliver such temporary global Security to the Depositary,
unless such temporary global Security shall have been cancelled in accordance
with Section 309 hereof; provided, however, that, unless otherwise specified in
such temporary global Security, upon such presentation by the Depositary, such
temporary global Security shall be accompanied by a certificate dated the
Exchange Date or a subsequent date and signed by Euroclear as to the portion of
such temporary global Security held for its account then to be exchanged for
definitive Securities (including any permanent global Security) and a
certificate dated the Exchange Date or a subsequent date and signed by CEDEL,
S.A., as to the portion of such temporary global Security held for its account
then to be exchanged for definitive Securities (including any permanent global
Security), each substantially in the form set forth in Exhibit B to this
Indenture. Each certificate substantially in the form of Exhibit B hereto of
Euroclear or CEDEL, S.A., as the case may be, shall be based on certificates of
the account holders listed in the records of Euroclear or CEDEL, S.A., as the
case may be, as being entitled to all or any portion of the applicable temporary
global Security. An account holder of Euroclear or CEDEL, S.A., as the case may
be, desiring to effect the exchange of an interest in a temporary global
Security for an interest in
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definitive Securities (including any permanent global Security) shall instruct
Euroclear or CEDEL, S.A., as the case may be, to request such exchange on its
behalf and shall deliver to Euroclear or CEDEL, S.A., as the case may be, a
certificate substantially in the form of Exhibit A hereto and dated no earlier
than 15 days prior to the Exchange Date. Until so exchanged, temporary global
Securities shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities (including any permanent global Security) of
the same series authenticated and delivered hereunder, except as provided in the
fourth succeeding paragraph.
The delivery to the Trustee for the Securities of the appropriate series or
the Global Exchange Agent by Euroclear or CEDEL, S.A. of any certificate
substantially in the form of Exhibit B hereto may be relied upon by the Company
and such Trustee or the Global Exchange Agent as conclusive evidence that a
corresponding certificate or certificates has or have been delivered to
Euroclear or to CEDEL, S.A., as the case may be, pursuant to the terms of this
Indenture.
On or prior to the Exchange Date, the Company shall deliver to the Trustee
for the Securities of the appropriate series or the Global Exchange Agent
definitive Securities in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. At any time
on or after the Exchange Date, upon 30 days' notice to the Trustee for the
Securities of the appropriate series or the Global Exchange Agent by Euroclear
or CEDEL, S.A., as the case may be, acting at the request of or on behalf of the
beneficial owner, a Security represented by a temporary global Security or a
permanent global Security, as the case may be, may be exchanged, in whole or
from time to time in part, for definitive Securities without charge and such
Trustee or the Global Exchange Agent shall authenticate and deliver, in exchange
for each portion of such temporary global Security or such permanent global
Security, an equal aggregate principal amount of definitive Securities of the
same series of authorized denominations and with like terms and provisions as
the portion of such temporary global Security or such permanent global Security
to be exchanged, which, unless the Securities of the series are not issuable
both as Bearer Securities and as Registered Securities, as contemplated by
Section 301, shall be in the form of Bearer Securities or Registered Securities,
or any combination thereof, as shall be specified by the beneficial owner
thereof; provided, however, that definitive Bearer Securities shall be delivered
in exchange for a portion of the temporary global Security only in compliance
with the requirements of the second preceding paragraph. On or prior to the
thirtieth day following receipt by the Trustee for the Securities of the
appropriate series or the Global Exchange Agent of such notice with respect to a
Security, or, if such day is not a Business Day, the next succeeding Business
Day, the temporary global Security or the permanent global Security, as the case
may be, shall be surrendered by the Depositary to such Trustee, as the Company's
agent for such
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purpose, or the Global Exchange Agent to be exchanged in whole, or from time to
time in part, for definitive Securities or other definitive Securities, as the
case may be, without charge following such surrender, upon the request of
Euroclear or CEDEL, S.A., as the case may be, and such Trustee or the Global
Exchange Agent shall (1) endorse the applicable temporary global Security or the
permanent global Security to reflect the reduction of its principal amount by
the aggregate principal amount of such Security, (2) in accordance with
procedures acceptable to the Trustee cause the terms of such Security and
coupons, if any, to be entered on a definitive Security, (3) manually
authenticate such definitive Security and (4) if a Bearer Security is to be
delivered, deliver such definitive Security outside the United States to
Euroclear or CEDEL, S.A., as the case may be, for or on behalf of the beneficial
owner thereof, in exchange for a portion of such permanent global Security.
Unless otherwise specified in such temporary global Security or permanent
global Security, any such exchange shall be made free of charge to the
beneficial owners of such temporary global Security or permanent global
Security, except that a Person receiving definitive Securities must bear the
cost of insurance, postage, transportation and the like in the event that such
Person does not take delivery of such definitive Securities in person at the
offices of Euroclear or CEDEL, S.A. Definitive Securities in bearer form to be
delivered in exchange for any portion of a temporary global Security shall be
delivered only outside the United States.
Until exchanged in full as hereinabove provided, any temporary global
Security or definitive permanent global Security shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
the same series and with like terms and conditions, except as to payment of
interest, if any, authenticated and delivered hereunder. Unless otherwise
specified as contemplated by Section 301, interest payable on a temporary global
Bearer Security on an Interest Payment Date for Securities of such series shall
be payable to Euroclear and CEDEL, S.A. on such Interest Payment Date upon
delivery by Euroclear and CEDEL, S.A. to the Trustee for the Securities of the
appropriate series or the Global Exchange Agent in the case of payment of
interest on a temporary global Security with respect to an Interest Payment Date
occurring prior to the applicable Exchange Date of a certificate or certificates
substantially in the form set forth in Exhibit C to this Indenture, for credit
without further interest on or after such Interest Payment Date to the
respective accounts of the Persons who are the beneficial owners of such global
Security on such Interest Payment Date and who have, in the case of payment of
interest on a temporary global Security with respect to an Interest Payment Date
occurring prior to the applicable Exchange Date, each delivered to Euroclear or
CEDEL, S.A., as the case may be, a certificate substantially in the form set
forth in Exhibit D to this Indenture.
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Any definitive Bearer Security authenticated and delivered by the Trustee
for the Securities of the appropriate series or the Global Exchange Agent in
exchange for a portion of a temporary global Security shall not bear a coupon
for any interest which shall theretofore have been duly paid by such Trustee to
Euroclear or CEDEL, S.A. or by the Company to such Trustee in accordance with
the provisions of this Section.
With respect to Exhibits A, B, C and D to this Indenture, the Company may,
in its discretion and if required or desirable under applicable law, substitute
one or more other forms of such exhibits for such exhibits, eliminate the
requirement that any or all certificates be provided, or change the time that
any certificate may be required, provided that such substitute form or forms or
notice of elimination or change of such certification requirement have
theretofore been delivered to the Trustee with a Company Request and such form
or forms, elimination or change is reasonably acceptable to the Trustee.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee for the Securities of each series a security register (the security
register maintained in such office being herein sometimes referred to as the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Registered
Securities and of transfers of Registered Securities. The Trustee for the
Securities of each series is hereby initially appointed "Security Registrar" for
the purpose of registering Registered Securities and transfers of Registered
Securities of such series as herein provided.
Upon surrender for registration of transfer of any Registered Security of
any particular series at the office or agency of the Company in a Place of
Payment for that series, the Company shall execute, and the Trustee for the
Securities of each series shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities of
any authorized denominations, and of a like Stated Maturity and of a like series
and aggregate principal amount and with like terms and conditions.
Except as set forth below, at the option of the Holder, Registered
Securities of any particular series may be exchanged for other Registered
Securities of any authorized denominations, and of a like Stated Maturity and of
a like series and aggregate principal amount and with like terms and conditions,
upon surrender of the Registered Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee for such Securities shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive. Except as otherwise specified
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pursuant to Section 301, Registered Securities may not be exchanged for Bearer
Securities.
Notwithstanding any other provision of this Section or Section 304, unless
and until it is exchanged in whole or in part for Registered Securities in
definitive form, a global Security representing all or a portion of the
Registered Securities of a series may not be transferred except as a whole by
the Depositary for such series to a nominee of such Depositary or by a nominee
of such Depositary to such Depositary or another nominee of such Depositary or
by such Depositary or any such nominee to a successor Depositary for such series
or a nominee of such successor Depositary.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and with like terms and
provisions upon surrender of the Bearer Securities to be exchanged at any office
or agency of the Company in a Place of Payment for that series, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company (or to the Trustee for the Security in case of matured coupons in
default) in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and such Trustee if there is furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive the amount of such
payment; provided, however, that, except as otherwise provided herein, interest
represented by coupons shall be payable only upon presentation and surrender of
those coupons at an office or agency of the Company in a Place of Payment for
that series located outside the United States. Notwithstanding the foregoing,
in case a Bearer Security of any series is surrendered at any such office or
agency in exchange for a Registered Security of the same series and with like
terms and conditions after the close of business at such office or agency on or
after (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, such Bearer Security
shall be surrendered without the coupon relating to such Interest Payment Date
or proposed date for payment, as the case may be (or, if such coupon is so
surrendered with such Bearer Security, such coupon shall be returned to the
Person so surrendering the Bearer Security), and interest or Defaulted Interest,
as the case may be, will not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in
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respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due upon presentment
of such coupon in accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee for such Securities shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
If at any time the Depositary for Securities of a series in registered form
notifies the Company that it is unwilling or unable to continue as Depositary
for the Securities of such series or if at any time the Depositary for the
Securities for such series shall no longer be eligible under Section 303, the
Company shall appoint a successor Depositary with respect to the Securities for
such series. If a successor Depositary for the Securities of such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, the Company's election pursuant to
Section 301 shall no longer be effective with respect to the Securities for such
series and the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, will authenticate and deliver Securities of such series in definitive
form, in an aggregate principal amount equal to the principal amount of the
global Security or Securities representing such series in exchange for such
global Security or Securities.
The Company may at any time and in its sole discretion determine that the
Registered Securities of any series issued in the form of one or more global
Securities shall no longer be represented by such global Security or Securities.
In such event the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Registered
Securities of such series, will authenticate and deliver Registered Securities
of such series in definitive form, and in an aggregate principal amount equal to
the principal amount of the global Security or Securities representing such
series in exchange for such global Security or Securities.
If specified by the Company pursuant to Section 301 with respect to a
series of Securities in registered form, the Depositary for such series of
Securities may surrender a global Security for such series of Securities in
exchange in whole or in part for Securities of such series of like tenor and
terms and in definitive form on such terms as are acceptable to the Company and
such Depositary. Thereupon the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge, (i) to each Person specified
by such Depositary a new Security or Securities of the same series, of like
tenor and terms, and of any authorized denomination as requested by such Person
in aggregate principal amount equal to and in exchange for such Person's
beneficial interest in the global Security, and (ii) to such
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Depositary a new global Security of like tenor and terms and in a denomination
equal to the difference, if any, between the principal amount of the surrendered
global Security and the aggregate principal amount of Securities delivered to
Holders thereof.
Upon the exchange of a global Security for Securities in definitive form,
such global Security shall be cancelled by the Trustee. Registered Securities
issued in exchange for a global Security pursuant to this Section shall be
registered in such names and in such authorized denominations as the Depositary
for such global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee in writing. The Trustee
shall deliver such Registered Security to the Persons in whose names such
Securities are so requested.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
exchange shall (if so required by the Company or the Trustee for such Security)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar for such series duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 806 or 1007 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1004 and ending
at the close of business on (A) if Securities of the series are issuable only as
Registered Securities, the day of the mailing of the relevant notice of
redemption and (B) if Securities of the series are issuable as Bearer
Securities, the day of the first publication of the relevant notice of
redemption or, if Securities of the series are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption, or (ii) to register the transfer of or exchange any Registered
Security so selected for redemption as a whole or in part, except the unredeemed
portion of any Security being redeemed in part, or (iii) to exchange any Bearer
Security so selected for redemption except that such a Bearer Security may be
exchanged for a Registered Security of that series and like tenor provided,
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however, that such Registered Security shall be simultaneously surrendered for
redemption.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities and Coupons.
If (i) any mutilated Security or a Security with a mutilated coupon
appertaining thereto is surrendered to the Trustee for such Security or the
Company and the Trustee for the Security receives evidence to its satisfaction
of the destruction, loss or theft of any Security or coupon and (ii) there is
delivered to the Company and such Trustee such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or such Trustee that such Security
or coupon has been acquired by a bona fide purchaser, the Company shall execute
and upon its request such Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security or in exchange for such mutilated
Security, or in exchange for the Security to which a mutilated, destroyed, lost
or stolen coupon appertains (with all appurtenant coupons not mutilated,
destroyed, lost or stolen) a new Security of the same series and in a like
principal amount and of a like Stated Maturity and with like terms and
conditions and bearing a number not contemporaneously outstanding with coupons
corresponding to the coupons, if any, appertaining to such mutilated, destroyed,
lost or stolen Security or to the Security to which such mutilated, destroyed,
lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or coupon
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security or coupon (without
surrender thereof except in the case of a mutilated Security or coupon) if the
applicant for such payment shall furnish to the Company and the Trustee for such
Security such security or indemnity as may be required by them to save each of
them harmless, and in case of destruction, loss or theft, evidence satisfactory
to the Trustee and any agent of the Trustee of the destruction, loss or theft of
such Security and the ownership thereof; provided, however, that the principal
of (and premium, if any) and interest, if any, on Bearer Securities shall,
except as otherwise provided herein, be payable only at an office or agency
located outside the United States and, unless otherwise specified as
contemplated by Section 301, any interest on a Bearer Security shall be payable
only upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
all fees and expenses of the Trustee to such Security) connected therewith.
Every new Security of any series, with its coupons, if any, issued pursuant
to this Section in lieu of any destroyed, lost or
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stolen Security or in exchange for any mutilated Security, or in exchange for a
Security to which a mutilated, destroyed, lost or stolen coupon appertains shall
constitute an original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security and its coupons, if any, or the
destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of the same series and their
coupons, if any.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Registered Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall, if so provided in
such Security, be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest payment; provided, however, that interest, if any,
that is payable at Maturity or upon redemption will be payable to the Person to
whom principal shall be payable.
Unless otherwise provided with respect to the Securities of any series
pursuant to Section 301, payment of interest may be made at the option of the
Company (i) in the case of Registered Securities, by check mailed or delivered
to the address of the Person entitled thereto as such address shall appear in
the Security Register or by wire transfer to an account maintained by the payee
with a bank located inside the United States according to the written
instructions of the payee signed by two authorized officers of the payee, if
any, or (ii) in the case of Bearer Securities, except as otherwise provided in
Section 909, upon presentation and surrender of the appropriate coupon
appertaining thereto at an office or agency of the Company in a Place of Payment
located outside the United States or by transfer to an account maintained by the
payee with a bank located outside the United States.
Unless otherwise provided or contemplated by Section 301, every permanent
global Security will provide that interest, if any, payable on any Interest
Payment Date will be paid to each of Euroclear and CEDEL, S.A. with respect to
that portion of such permanent global Security held for its account by the
Depositary. Each of Euroclear and CEDEL, S.A. will in such circumstances credit
the interest received by it in respect of such permanent global Security to the
accounts of the beneficial owners thereof.
Any interest on any Registered Security of any particular series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called
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"Defaulted Interest") shall forthwith cease to be payable to the registered
Holder on the relevant Regular Record Date by virtue of having been such Holder;
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of that series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee for the Registered Securities of such series in writing
of the amount of Defaulted Interest proposed to be paid on each Registered
Security of that series and the date of the proposed payment, and at the
same time the Company shall deposit with such Trustee an amount of money in
the currency or currency unit in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series and except as provided in Sections 311(b), 311(d)
and 311(e)) equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to such
Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided. Thereupon
such Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall not be more than 15 days and not less than
10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by such Trustee of the notice of the proposed payment.
Such Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of
Registered Securities of that series at his address as it appears in the
Security Register not less than 10 days prior to such Special Record Date.
Such Trustee may, in its discretion, in the name and at the expense of the
Company, cause a similar notice to be published at least once in a
newspaper published in the English language, customarily on each Business
Day and of general circulation in New York, New York, but such publication
shall not be a condition precedent to the establishment of such Special
Record Date. Notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the
Registered Securities of that series (or their respective Predecessor
Securities) are registered on such Special Record Date and shall no longer
be payable pursuant to the following clause (2).
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(2) The Company may make payment of any Defaulted Interest on
Registered Securities of any particular series in any other lawful manner
not inconsistent with the requirements of any securities exchange on which
the Registered Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice is given by the Company to the
Trustee for the Securities of such series of the proposed manner of payment
pursuant to this clause, such manner of payment shall be deemed practicable
by such Trustee.
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee for such Security and any agent of the
Company or such Trustee may treat the Person in whose name any such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of (and premium, if any) and, subject to Section 307, interest, if
any, on such Security and for all other purposes whatsoever, whether or not such
Security be overdue, and neither the Company, such Trustee nor any agent of the
Company or such Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustee for such Security and any agent of
the Company or such Trustee may treat the bearer of any Bearer Security and the
bearer of any coupon as the absolute owner of such Bearer Security or coupon for
the purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Security or coupon be overdue, and
neither the Company, such Trustee nor any agent of the Company or such Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 309. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Security Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for registration of transfer,
exchange or payment. The Trustee and no one else shall cancel or destroy all
Securities surrendered for
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registration of transfer, exchange, payment or cancellation, and shall so
certify to the Company.
All Bearer Securities and unmatured coupons so delivered to the Trustee for
such Securities shall be cancelled by such Trustee. Notwithstanding any other
provision of this Indenture to the contrary, in the case of a series, all the
Securities of which are not to be originally issued at one time, a Security of
such series shall not be deemed to have been Outstanding at any time hereunder
if and to the extent that, subsequent to the authentication and delivery
thereof, such Security is delivered to the Trustee for such Security for
cancellation by the Company or any agent thereof upon the failure of the
original purchaser thereof to make payment therefor against delivery thereof,
and any Security so delivered to such Trustee shall be promptly cancelled by it.
No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Securities and coupons held by the Trustee for
such Securities shall be disposed of by such Trustee in accordance with its
standard procedures and a certificate of disposition evidencing such disposition
of Securities and coupons shall be provided to the Company by such Trustee. In
the case of any temporary global Security, which shall be disposed of if the
entire aggregate principal amount of the Securities represented thereby has been
exchanged, the certificate of disposition shall state that all certificates
required pursuant to Section 304 hereof, substantially in the form of Exhibit B
hereto (or in the form of any substitute exhibit as provided in the last
paragraph of Section 304), to be given by Euroclear or CEDEL, S.A., have been
duly presented to the Trustee for such Securities by Euroclear or CEDEL, S.A.,
as the case may be. Permanent global Securities shall not be disposed of until
exchanged in full for definitive Securities or until payment thereon is made in
full.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities
of any particular series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months and, in the case
of an incomplete month, the number of days elapsed, the amount of interest
payable on the Securities of any series for any period to be equal to the
product of (i) the principal amount of the Securities of such series Outstanding
during such period, (ii) the stated rate of interest per annum (expressed as a
decimal fraction) payable on the Securities of such series and (iii) a fraction,
the numerator of which is the total number of full months elapsed in such period
multiplied by 30, plus the number of days in any incomplete month during which
such Securities were Outstanding, and the denominator of which is 360.
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SECTION 311. Currency and Manner of Payments in Respect of Securities.
(a) With respect to Registered Securities of any series not permitting the
election provided for in paragraph (b) below or the Holders of which have not
made the election provided for in paragraph (b) below, and with respect to
Bearer Securities of any series, except as provided in paragraph (d) below,
payment of the principal of (and premium, if any) and interest, if any, on any
Registered Security or Bearer Security of such series will be made in the
currency or currency unit in which such Registered Security or Bearer Security,
as the case may be, is payable.
(b) It may be provided pursuant to Section 301 with respect to Registered
Securities of any series that Holders shall have the option, subject to
paragraphs (d) and (e) below, to receive payments of principal of (and premium,
if any) or interest, if any, on such Registered Securities in any of the
currencies or currency units which may be designated for such election by
delivering to the Trustee for such series of Registered Securities a written
election with signature guarantees and in form and substance satisfactory to
such Trustee, not later than the close of business on the Election Date
immediately preceding the applicable payment date. If a Holder so elects to
receive such payments in any such currency or currency unit, such election will
remain in effect for such Holder until changed by such Holder by written notice
to the Trustee for such series of Registered Securities (but any such change
must be made not later than the close of business on the Election Date
immediately preceding the next payment date to be effective for the payment to
be made on such payment date and no such change of election may be made with
respect to payments to be made on any Registered Security of such series with
respect to which an Event of Default has occurred or notice of redemption has
been given by the Company pursuant to Article Ten). In the event any Holder
makes any such election pursuant to the preceding sentence, such election will
not be effective on any transferee of such Holder and such transferee shall be
paid in the currency or currency unit indicated pursuant to paragraph (a) above
unless such transferee makes an election pursuant to the preceding sentence;
provided, however, that such election, if in effect while funds are on deposit
with respect to the Securities of such series as described in Section 401(1)(B),
Section 402(1) or Section 403(1), will be effective on any transferee of such
Holder unless otherwise specified pursuant to Section 301 for the Securities of
such series. Any Holder of any such Registered Security who shall not have
delivered any such election to the Trustee of such series of Registered
Securities not later than the close of business on the applicable Election Date
will be paid the amount due on the applicable payment date in the relevant
currency or currency unit as provided in paragraph (a) of this Section. In no
case may a Holder of Securities of any series elect to receive payments in any
currency or currency unit as described in this Section 311(b) following a
deposit of funds with respect to the Securities of such series as described in
Section 401(1)(B), Section 402(1) or Section
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403(1). The Trustee for each such series of Registered Securities shall notify
the Currency Determination Agent as soon as practicable after the Election Date
of the aggregate principal amount of Registered Securities for which Holders
have made such written election and of the currency or currency unit for which
such written election has been made.
(c) If the election referred to in paragraph (b) above has been provided
for pursuant to Section 301, then not later than the fourth Business Day after
the Election Date for each payment date for Registered Securities of any series,
the Currency Determination Agent for that series will deliver to the Company a
written notice specifying, in the currency or currency unit in which Registered
Securities of such series are payable, the respective aggregate amounts of
principal of (and premium, if any) and interest, if any, on the Registered
Securities to be made on such payment date, and specifying the amounts in such
currency or currency unit so payable in respect of the Registered Securities of
such series as to which the Holders thereof shall have elected to be paid in a
currency or currency unit other than that in which such series is denominated as
provided in paragraph (b) above. If the election referred to in paragraph (b)
above has been provided for pursuant to Section 301 and if at least one Holder
has made such election, then, on the second Business Day preceding such payment
date the Company will deliver to the Trustee for such series of Registered
Securities an Exchange Rate Officers' Certificate in respect of the Dollar,
Foreign Currency, ECU or currency unit payments to be made on such payment date.
The Dollar, Foreign Currency, ECU or currency unit amount receivable by Holders
of Registered Securities who have elected payment in a currency or currency unit
as provided in paragraph (b) above shall, unless otherwise provided pursuant to
Section 301, be determined by the Company on the basis of the applicable Market
Exchange Rate in effect on the third Business Day (the "Valuation Date")
immediately preceding each payment date.
(d) If a Conversion Event occurs with respect to a Foreign Currency, the
ECU or any other currency unit in which any of the Securities are denominated or
payable other than pursuant to an election provided for pursuant to paragraph
(b) above, then with respect to each date for the payment of principal of (and
premium, if any) and interest, if any, on the applicable Securities denominated
or payable in such Foreign Currency, the ECU or such other currency unit
occurring after the last date on which such Foreign Currency, the ECU or such
other currency unit was available (the "Conversion Date"), the Dollar shall be
the currency of payment for use on each such payment date. The Dollar amount to
be paid by the Company to the Trustee of each such series of Securities and by
such Trustee or any Paying Agent to the Holders of such Securities with respect
to such payment date shall be the amount that would have been payable in foreign
currency or currency units but expressed in Dollars according to the Dollar
Equivalent of the Foreign Currency or, in the case of a currency unit, the
Dollar Equivalent of the Currency Unit, in each case as determined by the
Currency Determination Agent in the manner provided in paragraph (f) or (g)
below.
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(e) If the Holder of a Registered Security denominated in any currency or
currency unit shall have elected to be paid in another currency or currency unit
as provided in paragraph (b) above, and a Conversion Event occurs with respect
to such elected currency or currency unit, such Holder shall receive payment in
the currency or currency unit in which payment would have been made in the
absence of such election. If a Conversion Event occurs with respect to the
currency or currency unit in which payment would have been made in the absence
of such election, such Holder shall receive payment in Dollars as provided in
paragraph (d) above.
(f) The "Dollar Equivalent of the Foreign Currency" shall be determined by
the Currency Determination Agent and shall be obtained for each subsequent
payment after the Conversion Date by converting the specified Foreign Currency
into Dollars at the Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be determined by the
Currency Determination Agent and subject to the provisions of paragraph (h)
below shall be the sum of each amount obtained by converting the Specified
Amount of each Component Currency into Dollars at the Market Exchange Rate for
such Component Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 311 the following terms shall have the
following meanings:
A "Component Currency" shall mean any currency which, on the Conversion
Date, was a component currency of the relevant currency unit, including, but not
limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the number of units
of such Component Currency or fractions thereof which were represented in the
relevant currency unit, including, but not limited to, the ECU, on the
Conversion Date. If after the Conversion Date the official unit of any
Component Currency is altered by way of combination or subdivision, the
Specified Amount of such Component Currency shall be divided or multiplied in
the same proportion. If after the Conversion Date two or more Component
Currencies are consolidated into a single currency, the respective Specified
Amounts of such Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the respective Specified Amounts of such
consolidated Component Currencies expressed in such single currency, and such
amount shall thereafter be a Specified Amount and such single currency shall
thereafter be a Component Currency. If after the Conversion Date any Component
Currency shall be divided into two or more currencies, the Specified Amount of
such Component Currency shall be replaced by amounts of such two or more
currencies, each of whose Dollar Equivalent at the Market Exchange Rate on the
date of such replacement shall be equal to the Dollar Equivalent of the
Specified Amount of such former Component Currency at the Market Exchange Rate
on such date divided by the number of currencies into
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which such Component Currency was divided, and such amounts shall thereafter be
Specified Amounts and such currencies shall thereafter be Component Currencies.
If, after the Conversion Date of the relevant currency unit, including, but not
limited to, the ECU, a Conversion Event (other than any event referred to above
in this definition of "Specified Amount") occurs with respect to any Component
Currency of such currency unit and is continuing on the applicable Valuation
Date, the Specified Amount of such Component Currency shall, for purposes of
calculating the Dollar Equivalent of the Currency Unit, be converted into
Dollars at the Market Exchange Rate in effect on the Conversion Date of such
Component Currency.
"Election Date" shall mean any date for any series of Registered Securities
as specified pursuant to Section 301(14) by which the written election referred
to in Section 311(b) may be made, such date to be not later than the Regular
Record Date for the earliest payment for which such election may be effective.
All decisions and determinations of the Currency Determination Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent
of the Currency Unit, the Market Exchange Rate and changes in the Specified
Amounts as specified above shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company, the Trustee for the appropriate series of Securities
and all Holders of such Securities denominated or payable in the relevant
currency or currency units. The Currency Determination Agent shall promptly
give written notice to the Company and the Trustee for the appropriate series of
Securities of any such decision or determination.
In the event of a Conversion Event with respect to a Foreign Currency, the
Company, after learning thereof, will immediately give written notice thereof to
the Trustee of the appropriate series of Registered Securities and the Currency
Determination Agent with respect to such series (and such Trustee will promptly
thereafter give notice in the manner provided in Section 106 to the Holders)
specifying the Conversion Date. In the event of a Conversion Event with respect
to the ECU or any other currency unit in which Registered Securities are
denominated or payable, the Company, after learning thereof, will immediately
give written notice thereof to the Trustee of the appropriate series of
Registered Securities and the Currency Determination Agent with respect to such
series (and such Trustee will promptly thereafter give notice in the manner
provided in Section 106 to the Holders) specifying the Conversion Date and the
Specified Amount of each Component Currency on the Conversion Date. In the
event of any subsequent change in any Component Currency as set forth in the
definition of Specified Amount above, the Company, after learning thereof, will
similarly give written notice to the Trustee of the appropriate series of
Registered Securities and the Currency Determination Agent.
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The Trustee of the appropriate series of Registered Securities shall be
fully justified and protected in relying and acting upon information received by
it from the Company and the Currency Determination Agent and shall not otherwise
have any duty or obligation to determine such information independently.
SECTION 312. Appointment and Resignation of Currency Determination Agent.
(a) If and so long as the Securities of any series (i) are denominated in a
currency unit or a currency other than Dollars or (ii) may be payable in a
currency unit or a currency other than Dollars, or so long as it is required
under any other provision of this Indenture, then the Company will maintain with
respect to each such series of Securities, or as so required, a Currency
Determination Agent. The Company will cause the Currency Determination Agent to
make the necessary foreign exchange determinations at the time and in the manner
specified pursuant to Section 301 for the purpose of determining the applicable
rate of exchange and for the purpose of converting the issued currency or
currency unit into the applicable payment currency or currency unit for the
payment of principal (and premium, if any) and interest, if any, pursuant to
Section 311.
(b) No resignation of the Currency Determination Agent and no appointment
of a successor Currency Determination Agent pursuant to this Section shall
become effective until the acceptance of appointment by the successor Currency
Determination Agent as evidenced by a written instrument delivered to the
Company and the Trustee of the appropriate series of Securities accepting such
appointment executed by the successor Currency Determination Agent.
(c) If the Currency Determination Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Currency
Determination Agent for any cause, with respect to the Securities of one or more
series, the Company, by a Board Resolution, shall promptly appoint a successor
Currency Determination Agent or Currency Determination Agents with respect to
the Securities of that or those series (it being understood that any such
successor Currency Determination Agent may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall
only be one Currency Determination Agent with respect to the Securities of any
particular series).
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ARTICLE FOUR
SATISFACTION, DISCHARGE AND DEFEASANCE
SECTION 401. Satisfaction and Discharge of Securities of any Series Under
Limited Circumstances.
The Company shall be deemed to have satisfied and discharged the entire
indebtedness on all the Securities of any particular series and, so long as to
the knowledge of the Responsible Officers of the Trustee no Event of Default
shall be continuing, the Trustee for the Securities of such series, upon Company
Request and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of such indebtedness, when:
(1) either
(A) all Securities of such series theretofore authenticated
and delivered and all coupons, if any, appertaining thereto (other
than (i) coupons appertaining to Bearer Securities surrendered for
exchange for Registered Securities and maturing after such exchange,
whose surrender is not required or has been waived as provided in
Section 305, (ii) any Securities and coupons of such series which have
been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306, (iii) coupons appertaining to Securities
called for redemption and maturing after the relevant Redemption Date,
whose surrender is not required as provided in Section 1006 and (iv)
Securities and coupons of such series for whose payment money has
theretofore been deposited in trust or segregated and held in trust by
the Company and thereafter repaid to the Company or discharged from
such trust as provided in Section 405) have been delivered to such
Trustee for cancellation; or
(B) except as otherwise specified pursuant to Section 301
for the Securities of such series, with respect to all Outstanding
Securities of such series described in (A) above (and, in the case of
Bearer Securities, any coupons appertaining thereto) not theretofore
so delivered to the Trustee for the Securities of such series for
cancellation shall have become due and payable and the Company has
deposited or caused to be deposited with such Trustee as trust funds
in trust an amount in the currency or currency unit in which the
Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except
as provided in Sections 311(b), 311(d) and 311(e), in which case the
deposit to be made with respect to Securities for which an election
has occurred pursuant to Section 311(b), or a Conversion Event has
occurred as provided in
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Sections 311(d) and 311(e), shall be made in the currency or currency
unit in which such Securities are payable as a result of such election
or Conversion Event), sufficient to pay and discharge the entire
indebtedness on all such Outstanding Securities of such series and any
related coupons for principal (and premium, if any) and interest, if
any, to the Stated Maturity or any Redemption Date, as the case may
be; and
(2) the Company has paid or caused to be paid all other sums
payable with respect to the Securities of such series and any related
coupons.
The Company will reimburse the Trustee for any subsequent costs or expenses
reasonably and properly incurred by the Trustee in connection with this
Indenture or the Securities of such series.
SECTION 402. Satisfaction and Discharge.
The Company may take any action provided for in this Section unless
otherwise specified pursuant to Section 301 for the Securities of any particular
series. The Company at any time at its option may terminate all of its
obligations under the Securities of a series previously authenticated and any
related coupons and its obligations under this Indenture with respect to
such series (except as provided below), and the Trustee, at the expense of the
Company, shall, upon the request of the Company, execute proper instruments
acknowledging satisfaction of and discharging this Indenture with respect to
Securities of that series, effective on the date the following conditions are
satisfied:
(1) with reference to this Section,
(i) the Company has deposited or caused to be deposited with
such Trustee as trust funds in trust an amount in the currency or
currency unit in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the
Securities of such series and except as provided in Sections
311(b), 311(d) and 311(e), in which case the deposit to be made
with respect to Securities for which an election has occurred
pursuant to Section 311(b), or a Conversion Event has occurred as
provided in Sections 311(d) and 311(e), shall be made in the
currency or currency unit in which such Securities are payable as
a result of such election or Conversion Event), sufficient to pay
and discharge the entire indebtedness on all such Outstanding
Securities of such series and any related coupons for principal
(and premium, if any) and interest, if any, to the Stated
Maturity or any Redemption Date as
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contemplated by this Section, as the case may be; or
(ii) the Company has deposited or caused to be deposited
with such Trustee as obligations in trust such amount of
Government Obligations as will, as evidenced by a Certificate of
a Firm of Independent Public Accountants delivered to such
Trustee, together with the predetermined and certain income to
accrue thereon (without consideration of any reinvestment
thereof), be sufficient to pay and discharge when due the entire
indebtedness on all such Outstanding Securities of such series
and any related coupons for unpaid principal (and premium, if
any) and interest, if any, to the Stated Maturity or any
Redemption Date as contemplated by this Section, as the case may
be; or
(iii) the Company has deposited or caused to be deposited
with such Trustee in trust an amount equal to the amount referred
to in clause (i) or (ii) in any combination of currency or
currency unit or Government Obligations;
and 91 days have passed during which no Event of Default under Section
501(5) or 501(6) has occurred;
(2) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(3) the Company has delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of Securities will not recognize income, gain
or loss for United States federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to federal income tax
on the same amount and in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge had not
occurred;
(4) if the Securities are then listed on any securities exchange, the
Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that such deposit, defeasance and discharge will not cause such
Securities to be delisted; and
(5) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, complying with Section 102 relating to the
Company's exercise of such option.
The trust established pursuant to Subsection 402(1) above shall be
irrevocable and shall be made under the terms of an escrow
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trust agreement in form and substance satisfactory to the Trustee. The escrow
trust agreement may, at the Company's election, grant the Company the right to
substitute Government Obligations from time to time for any or all of the
Government Obligations deposited with the Trustee pursuant to this Section and
the escrow trust agreement; provided, however, that the condition specified in
subsection (1) above is satisfied immediately following any such substitution or
substitutions. If any Securities of a series are to be redeemed prior to their
stated maturity pursuant to optional redemption provisions the applicable escrow
trust agreement shall provide therefor and the Company 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 Company.
Upon the satisfaction of the conditions set forth in this Section with
respect to the Securities of a particular series, the terms and conditions of
the Securities of that series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company.
Notwithstanding the satisfaction and discharge of this Indenture, (i) the
Company shall not be discharged from any payment obligations in respect of
Securities of any series and any related coupons which are deemed not to be
Outstanding under clause (3) of the definition thereof if such obligations
continue to be valid obligations of the Company under applicable law and (ii)
the obligations of the Company under Sections 304, 305, 306, 311, 512, 606, 607,
609, 610 and 909 with respect to the Securities of that series shall survive
until the Securities of that series are no longer Outstanding. Notwithstanding
the satisfaction of the conditions set forth in this Section, with respect to
all the Securities of any series not denominated in Dollars, upon the happening
of any Conversion Event the Company shall be obligated to make the payments in
Dollars required by Section 311(d) to the extent that the Currency Determination
Agent is unable to convert any Foreign Currency or Currency Unit in its
possession pursuant to Section 402(1) into the Dollar Equivalent of the Foreign
Currency or the Dollar Equivalent of the Currency Unit, as the case may be. If,
after the deposit referred to in Section 402(1) has been made, a Conversion
Event occurs as contemplated in Section 311(d) or 311(e), then the indebtedness
represented by such Security shall be fully discharged if the deposit made with
respect to such Security shall be converted into the Currency Unit in which such
Security is payable at the Dollar Equivalent of the Foreign Currency or the
Dollar Equivalent of the Currency Unit. The Trustee for such series of
Securities shall return to the Company any non-converted funds or securities in
its possession after such payments have been made.
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SECTION 403. Defeasance of Certain Obligations.
The Company may take any action provided for in this Section unless
otherwise specified pursuant to Section 301 for the Securities of any particular
series. The Company at any time at its option may cease to be under any
obligation to comply with Sections 903, 904 and 906 with respect to Securities
of a series effective on the date the following conditions are satisfied:
(1) with reference to this Section,
(i) the Company has deposited or caused to be deposited
with such Trustee as trust funds in trust an amount in the
currency or currency unit in which the Securities of such series
are payable (except as otherwise specified pursuant to Section
301 for the Securities of such series and except as provided in
Sections 311(b), 311(d) and 311(e), in which case the deposit to
be made with respect to Securities for which an election has
occurred pursuant to Section 311(b), or a Conversion Event has
occurred as provided in Sections 311(d) and 311(e), shall be made
in the currency or currency unit in which such Securities are
payable as a result of such election or Conversion Event),
sufficient to pay and discharge the entire indebtedness on all
such Outstanding Securities of such series and any related
coupons for principal (and premium, if any) and interest, if any,
to the Stated Maturity or any Redemption Date as contemplated by
Section 402, as the case may be; or
(ii) the Company has deposited or caused to be
deposited with such Trustee as obligations in trust such amount
of Government Obligations as will, as evidenced by a Certificate
of a Firm of Independent Public Accountants delivered to such
Trustee, together with the predetermined and certain income to
accrue thereon (without consideration of any reinvestment
thereof), be sufficient to pay and discharge when due the entire
indebtedness on all such Outstanding Securities of such series
and any related coupons for unpaid principal (and premium, if
any) and interest, if any, to the Stated Maturity or any
Redemption Date as contemplated by Section 402, as the case may
be; or
(iii) the Company has deposited or caused to be
deposited with such Trustee in trust an amount equal to the
amount referred to in clause (i) or (ii) in any combination of
currency or currency unit or Government Obligations; and
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(2) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(3) the Company has delivered to the Trustee an Opinion of Counsel to
the effect that Holders of the Securities of such series will not recognize
income, gain or loss for United States federal income tax purposes as a
result of such deposit and defeasance of certain obligations and will be
subject to federal income tax on the same amount and in the same manner and
at the same times as would have been the case if such deposit and
defeasance had not occurred;
(4) if the Securities are then listed on any securities exchange, the
Company has delivered to the Trustee an Opinion of Counsel to the effect
that such deposit and defeasance will not cause such Securities to be
delisted; and
(5) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel complying with Section 102 relating to the
Company's exercise of such option.
The trust established pursuant to Subsection 403(1) above shall be
irrevocable and shall be made under the terms of an escrow trust agreement in
form and substance satisfactory to the Trustee. The escrow trust agreement may,
at the Company's election, grant the Company the right to substitute Government
Obligations from time to time for any or all of the Government Obligations
deposited with the Trustee pursuant to this Section and the escrow trust
agreement; provided, however, that the condition specified in subsection (1)
above is satisfied immediately following any such substitution or substitutions.
If any Securities of a series are to be redeemed prior to their stated maturity
pursuant to optional redemption provisions the applicable escrow trust agreement
shall provide therefor and the Company 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 Company.
The Company's exercise of its option under this Section shall not preclude
the Company from subsequently exercising its option under Section 402 hereof and
the Company may so exercise that option by providing the Trustee with written
notice to such effect.
SECTION 404. Application of Trust Money.
The Trustee shall hold in trust money and Government Obligations deposited
with it pursuant to Sections 401, 402 or 403. It shall apply the deposited
money and Government Obligations through the Paying Agent and in accordance with
this Indenture, to the payment of principal (and premium, if any) and interest,
if any, on the Securities of the series for the payment of which such money and
Government Obligations has been deposited. The Holder of
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any Security or coupons appertaining thereto replaced pursuant to Section 306
shall not be entitled to any such payment and shall look only to the Company for
any payment which such Holder may be entitled to collect. In connection with the
satisfaction and discharge of this Indenture or the defeasance of certain
obligations under this Indenture with respect to Securities of a series pursuant
to Section 402 or 403 hereof, respectively, the escrow trust agreement may, at
the Company's election, (1) enable the Company to direct the Trustee to invest
any money received by the Trustee on the Government Obligations deposited in
trust thereunder in additional Government Obligations, and (2) enable the
Trustee for any series of Securities to deliver or pay to the Company from time
to time upon the request of the Company any money or Government Obligations held
by it as provided in Sections 401, 402 and 403 which, as evidenced by a
Certificate of a Firm of Independent Public Accountants, are in excess of the
amount thereof which would then have been required to be deposited for the
purpose for which such money or Government Obligations were deposited or
received.
SECTION 405. Repayment to Company.
The Trustee and the Paying Agent shall promptly pay to the Company upon
request any excess money or securities held by them at any time. The Trustee
and the Paying Agent shall pay, unless otherwise prohibited by mandatory
provisions of applicable escheat or abandoned or unclaimed property law, to the
Company upon request any money held by them for the payment of principal (and
premium, if any) or interest, if any, that remains unclaimed for two years.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
An "Event of Default" occurs with respect to a series of Securities if:
(1) the Company defaults in the payment of interest on any Security of
that series or a related coupon, if any, when the same becomes due and
payable and the default continues for a period of 30 days;
(2) the Company defaults in the payment of the principal (and premium,
if any) of any Security of that series when the same becomes due and
payable at Maturity, upon redemption or otherwise;
(3) the Company fails to comply with any of its other agreements in
the Securities of that series or this Indenture
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for the benefit of that series and the default continues for the period and
after the notice specified in this Section;
(4) the Company or any Subsidiary fails to pay, in accordance with its
terms and when payable, any of the principal of or interest on any Debt
(other than the Securities) having, in the aggregate, a then outstanding
principal amount in excess of $20,000,000 or the maturity of any Debt in
such amount shall have been accelerated by any holder or holders thereof or
any trustee or agent acting on behalf of such holder or holders, or any
Debt in such amount shall have been required by such holder, holders,
trustee or agent to be prepaid prior to the stated maturity thereof, in
accordance with the provisions of any contract evidencing, providing for
the creation of or concerning such Debt;
(5) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in
an involuntary case,
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
(6) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case,
(B) appoints a Custodian of the Company or for all or
substantially all of its property, or
(C) orders the winding up or liquidation of the Company,
and the order or decree remains unstayed and in effect for 60 days; or
(7) there occurs any other event specifically described as an Event of
Default by the Securities of that series.
The term "Bankruptcy Law" means Title 11, United States Code or any similar
Federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator, custodian or similar official under any
Bankruptcy Law.
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A default under clause (3) is not an Event of Default with respect to a
series of Securities until the Trustee or the Holders of at least 25% in
principal amount of the Securities of that series notify the Company (and the
Trustee if such notice is given by Holders) of the default and the Company does
not cure the default within 30 days after receipt of the notice. The notice
must specify the default, demand that it be remedied and state that the notice
is a "Notice of Default." Subject to the provisions of Article Six, the Trustee
shall not be charged with knowledge of any default unless written notice thereof
shall have been given to the Trustee by the Company, the Paying Agent, the
Holder of a Security or an agent of such Holder.
SECTION 502. Acceleration.
If an Event of Default with respect to a series of Securities occurs and is
continuing, the Trustee by notice to the Company or the Holders of at least 25%
in principal amount of the Securities of that series by notice to the Company
and the Trustee may declare the principal (and premium, if any) (or, in the case
of Original Issue Discount Securities, such amount of principal as may be
provided for in such Securities) of and accrued interest on all the Securities
of that series to be due and payable immediately. Upon a declaration such
principal (and premium, if any) and interest shall be due and payable
immediately. The Holders of a majority in principal amount of the Securities of
any series by notice to the Trustee may rescind an acceleration (and upon such
rescission any past Event of Default caused by such acceleration shall be deemed
cured) with respect to that series and its consequences if all existing Events
of Default with respect to the series have been cured or waived, if the
rescission would not conflict with any judgment or decree, and if all payment
due to the Trustee and any predecessor Trustee under Section 606 have been made.
No such rescission shall affect any subsequent Default or impair any rights
consequent thereto.
SECTION 503. Other Remedies.
If an Event of Default with respect to a series of Securities occurs and is
continuing, the Trustee may pursue any available remedy by proceeding at law or
in equity to collect the payment of principal of (and premium, if any) (or, in
the case of Original Issue Discount Securities, such amount of principal as may
be provided for in such Securities) or interest on the Securities or related
coupons of that series or to enforce the performance of any provision of such
Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or related coupons or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Holder in exercising any
right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. No
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remedy is exclusive of any other remedy. All available remedies are cumulative
to the extent permitted by law.
SECTION 504. Waiver of Past Defaults.
The Holders of a majority in principal amount of the Securities of a series
by notice to the Trustee may waive an existing Default or Event of Default with
respect to that series and its consequences. When a Default or Event of Default
is waived, it is cured and stops continuing, but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereto.
SECTION 505. Control by Majority.
The Holders of a majority in principal amount of the Securities of a series
may direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or of exercising any trust or power conferred on
it with respect to that series. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, or, subject to Section 601,
that the Trustee determines is unduly prejudicial to the rights of other Holders
of Securities of the same series or would involve the Trustee in personal
liability.
SECTION 506. Limitation on Suits.
No Holder of a Security of any series may pursue any remedy with respect to
this Indenture or the Securities or related coupons unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default with respect to the Securities of the series is
continuing;
(2) the Holders of at least 25% in principal amount of the Securities
of that series make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity satisfactory
to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in principal
amount of the Securities of that series do not give the Trustee a direction
inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over the other Holder.
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SECTION 507. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of (and premium, if any) and interest, if
any, on the Security or related coupons, as the case may be, on or after the
respective due dates expressed in the Security or related coupons, as the case
may be, or to bring suit for the enforcement of any such payment on or after
such respective date, shall not be impaired or affected without the consent of
the Holder.
SECTION 508. Collection Suit by Trustee.
If an Event of Default in payment of interest or principal (and premium, if
any) specified in Section 501(1) or (2) occurs and is continuing, the Trustee
may recover judgment in its own name and as trustee of an express trust against
the Company for the whole amount of principal (and premium, if any) and
interest, if any, remaining unpaid.
SECTION 509. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee and the
Holders allowed in any judicial proceedings relative to the Company, its
creditors or its property, and unless prohibited by law or applicable
regulations, may vote on behalf of the Holders in any election of a trustee in
bankruptcy or other Person performing similar functions.
SECTION 510. Priorities.
If the Trustee collects any money pursuant to this Article with respect to
the Securities of any series, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 606.
Second: to the Holders of Securities and related coupons of that series
for amounts due and unpaid on such Securities and related coupons for principal
(and premium, if any) and interest, ratably, without preference or priority of
any kind, according to the amounts due and payable on such Securities and
related coupons for principal (and premium, if any) and interest, if any,
respectively; and
Third: to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section.
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SECTION 511. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any party litigant
in the suit other than the Trustee of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit including the
Trustee, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section does not apply to a suit by
the Trustee, a suit by a Holder pursuant to Section 507 or a suit by Holders of
more than 10% in principal amount of the Securities of any series.
SECTION 512. Judgment Currency.
If, for the purpose of obtaining a judgment in any court with respect to
any obligation of the Company hereunder or under any Security or any related
coupon it shall become necessary to convert into any other currency or currency
unit any amount in the currency or currency unit due hereunder or under such
Security or coupon then such conversion shall be made by the Currency
Determination Agent at the Market Exchange Rate as in effect on the date of
entry of the judgment (the "Judgment Date"). If pursuant to any such judgment,
conversion shall be made on a date (the "Substitute Date") other than the
Judgment Date and there shall occur a change between the Market Exchange Rate as
in effect on the Judgment Date and the Market Exchange Rate as in effect on the
Substitute Date, the Company agrees to pay such additional amounts (if any) as
may be necessary to ensure that the amount paid is equal to the amount in such
other currency or currency unit which, when converted at the Market Exchange
Rate as in effect on the Judgment Date, is the amount due hereunder or under
such Security or coupon. Any amount due from the Company under this Section
shall be due as a separate debt and is not to be affected by or merged into any
judgment being obtained for any other sums due hereunder or in respect of any
Security or coupon. In no event, however, shall the Company be required to pay
more in the currency or currency unit due hereunder or under such Security or
coupon at the Market Exchange Rate as in effect on the Judgment Date than the
amount of currency or currency unit stated to be due hereunder or under such
Security or coupon so that in any event the Company's obligations hereunder or
under such Security or coupon will be effectively maintained as obligations in
such currency or currency unit, and the Company shall be entitled to withhold
(or be reimbursed for, as the case may be) any excess of the amount actually
realized upon any such conversion on the Substitute Date over the amount due and
payable on the Judgment Date.
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ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with respect to
the Securities of any series for which the Trustee is serving as such,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against such Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
such Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provisions
hereof are specifically required to be furnished to such Trustee, such
Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to a series of Securities has
occurred and is continuing, the Trustee for the Securities of such series shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee for Securities of any series from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) such Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) such Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
direction of the Holders of not less than a majority in principal amount of
the Outstanding Securities of any particular series relating to the time,
method and place of conducting any proceeding for any remedy available to
such Trustee, or exercising any trust or power
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conferred upon such Trustee, under this Indenture with respect to the
Securities of that series; and
(4) no provision of this Indenture shall require the Trustee for any
series of Securities to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder or in
the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee for any series of Securities shall be subject to the
provisions of this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect
to Securities of any particular series, the Trustee for the Securities of such
series shall give to Holders of Securities of that series, in the manner set
forth in Section 106, notice of such default if known to such Trustee, unless
such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of (or premium, if any) or
interest, if any, on any Security of that series, or in the deposit of any
sinking fund payment with respect to Securities of that series, such Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or
Responsible Officers of such Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders of Securities of
that series and related coupons; and provided, further, that in the case of any
default of the character specified in Section 501(3) with respect to Securities
of that series no such notice to Holders shall be given until at least 60 days
after the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of that series.
SECTION 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee for any series of Security may rely and shall be
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
discretion, consent, order, bond, debenture, 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;
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(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order, and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, such Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) such Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
committed by it hereunder in good faith and in reliance thereon;
(e) such Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities of any series pursuant to this
Indenture for which it is acting as Trustee, unless such Holders shall have
offered to such Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(f) such 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, coupon or other paper or document, but such Trustee, in
its discretion, may make such further inquiry or investigation into such
facts or matters at it may see fit, and, if such Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Company, personally or by agent or
attorney;
(g) such Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and such Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(h) such Trustee shall not be charged with knowledge of any Event of
Default with respect to the Securities of any series for which it is acting
as Trustee unless either (1) a Responsible Officer shall have actual
knowledge of the Event of Default or (2) written notice of such Event of
Default shall have been given to the Trustee by the Company or
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any other obligor on such Securities or by any Holder of such Securities;
(i) such Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture; and
(j) such Trustee shall have no duties or responsibilities with respect
to and shall have no liability for the actions taken or the failures to act
of any other Trustees appointed hereunder.
SECTION 604. May Hold Securities.
The Trustee for any series of Securities, any Paying Agent, Security
Registrar or any other agent of the Company or of such Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and coupons and, subject to Sections 607 and 612, may otherwise deal with the
Company with the same rights it would have if it were not such Trustee, Paying
Agent, Security Registrar or such other agent.
The recitals contained herein and in the Securities, except the
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Securities. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. Money Held in Trust.
Money held by the Trustee for any series of Securities in trust hereunder
need not be segregated from other funds except as provided in Section 115 and
except to the extent required by law. The Trustee for any series of Securities
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed in writing with the Company.
SECTION 606. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such reasonable
compensation for all services rendered by it hereunder as the Company and
the Trustee shall mutually agree upon (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee for any series of Securities upon its
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request for all reasonable expenses, disbursements and advances incurred or
made by such Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and disbursements
of its agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith; and
(3) to indemnify such Trustee and its agents, including any
Authenticating Agent, for, and to hold them harmless against, any loss,
liability or expense incurred without negligence or bad faith on their
part, arising out of or in connection with the acceptance or administration
of this trust including the costs and expenses of defending themselves
against any claim or liability in connection with the exercise or
performance of any of their powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section the Trustee for any series of Securities shall have a senior claim
to which the Securities are hereby made subordinate on all money or property
held or collected by the Trustee as such, except funds held in trust for the
payment of principal of (and premium, if any) or interest if any, on particular
Securities.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(5) or (6), the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The Company's obligations under this Section 606 and any lien arising
hereunder shall survive the resignation or removal of any Trustee, the discharge
of the Company's obligations pursuant to Article Four of this Indenture and the
termination of this Indenture.
SECTION 607. Disqualification; Conflicting Interests.
The Trustee for the Securities shall be subject to the provisions of
Section 310(b) of the Trust Indenture Act during the period of time required
thereby. Nothing herein shall prevent the Trustee from filing with the
Commission the application referred to in the penultimate paragraph of Section
310(b) of the Trust Indenture Act. In determining whether the Trustee has a
conflicting interest as defined in Section 310(b) of the Trust Indenture Act
with respect to the Securities of any series, there shall be excluded Securities
of any particular series of Securities other than that series.
The Trustee shall not be deemed to have a conflict of interest under
Section 310(b) of the Trust Indenture Act with respect to any other indenture
entered into with the Company, provided that the Securities issued by the
Company under this Indenture are wholly unsecured.
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SECTION 608. Corporate Trustee Required, Different Trustees for Different
Series; Eligibility.
There shall at all times be a Trustee hereunder which shall be (i) a
corporation organized and doing business under the laws of the United States of
America, any state thereof, or the District of Columbia, authorized under such
laws to exercise corporate trust powers, and subject to supervision or
examination by Federal or State authority, or (ii) a corporation or other
Person organized and doing business under the laws of a foreign government that
is permitted to act as Trustee pursuant to a rule, regulation, or other order of
the Commission, authorized under such laws to exercise corporate trust powers,
and subject to supervision or examination by authority of such foreign
government or a political subdivision thereof substantially equivalent to
supervision or examination applicable to United States institutional trustees,
having, in either case, a combined capital and surplus of at least $10,000,000.
If such corporation publishes reports of condition at least annually, pursuant
to law or to requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. Neither the Company nor
any Person directly or indirectly controlling, controlled by, or under common
control with the Company shall serve as Trustee for the Securities. A different
Trustee may be appointed by the Company for any series of Securities prior to
the issuance of such Securities. If the initial Trustee for any series of
Securities is to be other than Marine Midland Bank, the Company and such Trustee
shall, prior to the issuance of such Securities, execute and deliver an
indenture supplemental hereto, which shall provide for the appointment of such
Trustee as Trustee for the Securities of such series 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. If at any
time the Trustee shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereunder specified in this Article.
SECTION 609. Resignation and Removal, Appointment of Successor.
(a) No resignation or removal of the Trustee for the Securities of any
series and no appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 610.
(b) The Trustee for the Securities of any series may resign at any time
with respect to the Securities of such series by giving
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written notice thereof to the Company. If the instrument of acceptance by a
successor Trustee required by Section 610 shall not have been delivered to the
Trustee for the Securities of such series within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(c) The Trustee for the Securities of any series may be removed at any time
with respect to the Securities of such series by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such series,
delivered to such Trustee and to the Company.
(d) If at any time:
(1) the Trustee for the Securities of any series shall fail to comply
with Section 310(b) of the Trust Indenture Act pursuant to Section 607
hereof after written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Security of such series for at least six
months, unless the Trustee's duty to resign is stayed in accordance with
the provisions of Section 310(b) of the Trust Indenture Act, or
(2) such Trustee shall cease to be eligible under Section 608 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) such Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of such Trustee or of its property
shall be appointed or any public officer shall take charge or control of
such Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove such
Trustee or (ii) subject to Section 511, any Holder who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of such Trustee and the appointment of a successor
Trustee.
(e) If the Trustee for the Securities of any series shall resign, be
removed or become incapable of acting, or if a vacancy shall occur in the office
of Trustee for the Securities of any series for any cause, the Company, by a
Board Resolution, shall promptly appoint a successor Trustee with respect to the
Securities of such series and shall comply with the applicable requirements of
Section 610. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of such series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the
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Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 610, become the successor Trustee for the
Securities of such series and supersede the successor Trustee appointed by the
Company. If no successor Trustee for the Securities of such series shall have
been so appointed by the Company or the Holders and shall have accepted
appointment in the manner required by Section 610, and if such Trustee is still
incapable of acting, any Holder who has been a bona fide Holder of a Security of
such series for at least six months may, subject to Section 511, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series in the manner
and to the extent provided in Section 106. Each notice shall include the name
of the successor Trustee with respect to the Securities of that series and the
address of its Corporate Trust Office.
SECTION 610. Acceptance of Appointment by Successor.
(a) Every successor Trustee appointed hereunder with respect to the
Securities of any series shall execute, acknowledge and deliver to the Company
and to the retiring Trustee an instrument accepting such appointment and
thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the
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retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and each such Trustee shall be trustee of a trust
or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
Subsections (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee for the Securities of any series shall be
qualified and eligible under this Article.
SECTION 611. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee for the Securities of any series may
be merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such Trustee
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of such Trustee, shall be the successor of such
Trustee hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee or the
Authenticating Agent for such series then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee, or any successor
Authenticating Agent, as the case may be, may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such
successor Trustee or
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successor Authenticating Agent had itself authenticated such Securities.
SECTION 612. Preferential Collection of Claims Against Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship listed in the Trust Indenture Act Section
311(b). A Trustee who has resigned or been removed shall be subject to the
Trust Indenture Act Section 311(a) to the extent indicated therein.
SECTION 613. Authenticating Agents.
From time to time the Trustee for the Securities of any series may, subject
to its sole discretion, appoint one or more Authenticating Agents with respect
to the Securities of such series, which may include any director or officer of
the Company or any Affiliate with power to act in the name of the Trustee and
subject to its discretion in the authentication and delivery of Securities of
such series in connection with registrations of transfers and exchanges under
Sections 304, 305, 306 and 1007 as fully to all intents and purposes as though
such Authenticating Agent had been expressly authorized by those Sections of
this Indenture to authenticate and deliver Securities of such series. For all
purposes of this Indenture the authentication and delivery of such Securities of
such series by an Authentication Agent for such Securities pursuant to this
Section shall be deemed to be authentication and delivery of such Securities "by
the Trustee" for the Securities of such series. Any such Authenticating Agent
shall at all times be a corporation organized and doing business under the laws
of the United States or of any State thereof, or the District of Columbia,
authorized under such laws to exercise corporate trust powers, and, if other
than an Affiliate of the Trustee, having a combined capital and surplus of at
least $10,000,000, and subject to supervision or examination by Federal, State,
or District of Columbia authority. If such corporation publishes reports of
condition at least annually pursuant to law or the requirements of such
supervising or examining authority, then for the purposes of this Section the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time an Authenticating Agent for any series of
Securities shall cease to be eligible in accordance with the provisions of this
Section, such Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any Authenticating Agent for any series of Securities may resign at any
time by giving written notice of resignation to the Trustee for such series and
to the Company. The Trustee for any series of Securities may at any time
terminate the appointment of any Authenticating Agent by giving written notice
of termination to such Authenticating Agent and to the Company in the manner set
forth in Section 105. Upon receiving such a notice of resignation
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or upon such a termination, or in case at any time any Authenticating Agent for
any series of Securities shall cease to be eligible under this Section, the
Trustee for such series may appoint a successor Authenticating Agent, shall give
written notice of such appointment to the Company and shall give written notice
of such appointment to all Holders of Securities of such series in the manner
set forth in Section 106. Any successor Authenticating Agent upon acceptance of
his appointment hereunder, shall become vested with all the rights, powers and
duties of his predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Company agrees to pay to any corporation that has been appointed as
Authenticating Agent for such series from time to time reasonable compensation
for such services.
If an appointment with respect to one or more series of Securities is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certification of authentication, an
alternate certificate of authentication in the following form:
"This is one of the Securities of the series designated therein described
in the within-mentioned Indenture.
Marine Midland Bank,
as Trustee
By:
---------------------------------
As Authenticating Agent
By: "
--------------------------------
SECTION 614. Reports by Trustee to Holders.
If required pursuant to Section 313(a) of the Trust Indenture Act, the
Trustee, within 60 days after each May 15, shall mail to each Holder a brief
report dated as of May 15 that complies with Section 313(a) of the Trust
Indenture Act. The Trustee also shall comply with the reporting obligations of
Section 313(b) of the Trust Indenture Act. A copy of each report at the time of
its mailing to Holders shall be filed with the Commission and each stock
exchange on which the Securities are listed.
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ARTICLE SEVEN
MERGER, CONSOLIDATION, CONVEYANCE OR TRANSFER
SECTION 701. Where Company May Merge, Etc.
The Company shall not consolidate with or merge into, or transfer, directly
or indirectly, all or substantially all of its assets to another corporation or
other Person unless (1) the resulting, surviving or transferee corporation or
other Person assumes by supplemental indenture all the obligations of the
Company under the Securities and this Indenture, (2) immediately after giving
effect to such transaction, no Event of Default and no circumstances that, after
notice or lapse of time or both, would become an Event of Default, shall have
happened and be continuing, and (3) the Company shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and such supplemental indenture comply
with this Indenture, and thereafter all such obligations of the Company shall
terminate.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 801. Supplemental Indentures Without Consent of Holders.
Without notice to or the consent of any Holders of Securities or coupons,
the Company, when authorized by a Board Resolution and the Trustee for the
Securities of any or all series, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to such
Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation or other Person
to the Company, and the assumption by any such successor of the covenants
of the Company herein and in the Securities;
(2) to add to the covenants of the Company, for the benefit of the
Holders of all or any particular series of Securities and any related
coupons (and, if such covenants are to be for the benefit of fewer than all
series of Securities, stating that such covenants are being included solely
for the benefit of such series), to convey, transfer, assign, mortgage or
pledge any property to or with the Trustee or otherwise secure any series
of the Securities or to surrender any right or power herein conferred upon
the Company;
(3) to add any additional Events of Default with respect to any or all
series of Securities (and, if any such Event of Default applies to fewer
than all series of Securities, stating each series to which such Event of
Default applies);
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(4) to add to or to change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or any
premium or interest on Bearer Securities, to permit Bearer Securities to be
issued in exchange for Registered Securities, to permit Bearer Securities
to be issued in exchange for Bearer Securities of other authorized
denominations, to provide (subject to applicable laws) for the issuance of
uncertificated Securities of any series in addition to or in place of any
certificated Securities and to make all appropriate changes for such
purposes; provided, however, that any such action shall not materially
adversely affect the rights of the Holders of Securities of any series or
any related coupons;
(5) to change or eliminate any of the provisions of this Indenture;
provided, however, that any such change or elimination shall become
effective only when there is no Security Outstanding of any series created
prior to the execution of such supplemental indenture which is entitled to
the benefit of such provision;
(6) to evidence and provide for the acceptance of appointment
hereunder of a Trustee other than Marine Midland Bank, as Trustee for a
series of Securities and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 608;
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 610(b);
(8) to add to the conditions, limitations and restrictions on the
authorized amount, form, terms or purposes of issue, authentication and
delivery of Securities, as herein set forth, other conditions, limitations
and restrictions thereafter to be observed;
(9) to add to or change or eliminate any provisions of this Indenture
as shall be necessary or desirable in accordance with any amendments to the
Trust Indenture Act;
(10) to cure any ambiguity, defect or inconsistency; or
(11) to make any other amendment, modification, change or supplement
to this Indenture or the Securities of any series that does not materially
adversely affect the rights of any Holder of any Securities of that series.
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The Trustee may waive compliance by the Company with any provision of this
Indenture or the Securities of any series without notice to or consent of any
Holder of any Security of such series if such waiver does not materially
adversely affect the rights of any Holder of any Securities of such series.
SECTION 802. Supplemental Indentures With Consent of Holders.
The Company and the Trustee for the Securities of any or all series may
enter into an indenture or indentures supplemental hereto for the purpose of
amending or supplementing any of the provisions of this Indenture or the
Securities and any related coupons, without notice to any Holder, but with the
consent of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of each series of Securities then Outstanding affected
thereby, in each case by Act of said Holders of Securities of each such series
delivered to the Company and the Trustee for Securities of each such series.
The Holders of a majority in principal amount of the Securities of each series
affected may waive compliance by the Company with any provision of this
Indenture or the Securities of each such series without notice to any Holder, in
each case by Act of said Holders of Securities of each such series delivered to
the Company and the Trustee for Securities of each such series. No such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security or coupon, or reduce the
principal amount thereof or the rate of interest thereon, if any, or any
premium payable upon the redemption thereof, or change any obligation of
the Company to pay additional amounts (except as contemplated by Section
701(1) and permitted by Section 801(1)) or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 502, or change the Place of Payment or the currency or currency
unit in which any Security or the interest thereon is payable;
(2) reduce the percentage in principal amount of the Outstanding
Securities of any particular series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain provisions
of this Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture; or
(3) modify any of the provisions of this Section, except to increase
any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of
each Security affected thereby; provided, however, that this clause shall
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not be deemed to require the consent of any Holder of a Security or coupon
with respect to changes in the references to "the Trustee" and concomitant
changes in this Section, or the deletion of this proviso, in accordance
with the requirements of Sections 608, 610(b), 801(6) and 801(7).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture that has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 803. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee for any series of Securities
shall be entitled to receive, and (subject to Section 601) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee for any series of Securities may, but shall not (except to the extent
required in the case of a supplemental indenture entered into under Section
801(6) or 801(7)) be obligated to, enter into any such supplemental indenture
which affects such Trustee's own rights, liabilities, duties or immunities under
this Indenture or otherwise.
SECTION 804. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
and of any coupons appertaining thereto shall be bound thereby.
SECTION 805. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 806. Reference in Securities to Supplemental Indentures.
Securities of any particular series authenticated and delivered after the
execution of any supplemental indenture
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pursuant to this Article may, and shall if required by the Trustee for the
Securities of such series, bear a notation in form approved by such Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series and any related coupons so modified
as to conform, in the opinion of the Trustee for the Securities of such series,
to any such supplemental indenture may be prepared and executed by the Company
and such Securities may be authenticated and delivered by such Trustee in
exchange for Outstanding Securities of such series and any related coupons.
ARTICLE NINE
COVENANTS
SECTION 901. Certain Definitions.
"Attributable Debt" for a lease means the carrying value of the capitalized
rental obligation determined under generally accepted accounting principles
whether or not such obligation is required to be shown on the balance sheet as a
long-term liability. The carrying value may be reduced by the capitalized value
of the rental obligations, calculated on the same basis, that any sublessee has
for all or part of the sample property.
"Consolidated Net Tangible Assets" means total assets less (1) total
current liabilities (excluding any Debt which, at the option of the borrower, is
renewable or extendible to a term exceeding 12 months and which is included in
current liabilities and further excluding any deferred income taxes which are
included in current liabilities) and (2) goodwill, patents, trademarks and other
like intangibles, all as stated on the Company's most recent quarter-end
consolidated balance sheet preceding the date of determination.
"Debt" means any debt for borrowed money, capitalized lease obligations and
purchase money obligations, or any guarantee of such debt, in any such case
which would appear on the consolidated balance sheet of the Company as a
liability.
"Exempted Debt" means the sum, without duplication, of the following items
outstanding as of the date Exempted Debt is being determined: (i) Debt incurred
after the date of this Indenture and secured by liens created or assumed or
permitted to exist pursuant to Section 903(b), and (ii) Attributable Debt of the
Company and its Subsidiaries in respect of all sale and lease-back transactions
with regard to any Principal Property entered into pursuant to Section 904(b).
"Funded Debt" means all Debt having a maturity of more than one year from
the date of its creation or having a maturity of less than one year but by its
terms being renewable or extendible, at the option of the obligor in respect
thereof, beyond one year from its creation.
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"Principal Property" means land, land improvements, buildings and
associated factory and laboratory equipment owned or leased pursuant to a
capital lease and used by the Company or any Subsidiary primarily for
manufacturing, assembling, processing, producing, packaging or storing its
products, raw materials, inventories or other materials and supplies located in
the United States and having an acquisition cost plus capitalized improvements
in excess of 2% of Consolidated Net Tangible Assets as of the date of
determination, but shall not include any such property financed through the
issuance of tax exempt governmental obligations, or any such property that has
been determined by Board Resolutions of the Company not to be of material
importance to the respective businesses conducted by the Company and its
Subsidiaries taken as a whole, effective as of the date such resolution is
adopted.
"Subsidiary" means a corporation a majority of the Voting Stock of which is
owned by the Company, the Company and one or more Subsidiaries, or one or more
Subsidiaries.
"United States" means the United States of America, but excluding the
Commonwealth of Puerto Rico, the Virgin Islands and other territories and
possessions thereof.
"Voting Stock" means capital stock having voting power under ordinary
circumstances to elect directors.
SECTION 902. Payment of Securities.
The Company shall promptly pay the principal of (and premium, if any) and
interest, if any, on the Securities and related coupons on the dates and in the
manner provided in the Securities.
To the extent lawful, the Company shall pay interest on overdue principal
at the rate borne by the Securities and shall pay interest on overdue
installments of interest at the same rate.
SECTION 903. Limitation on Liens.
(a) The Company will not, and will not permit any Subsidiary to, directly
or indirectly, as security for any Debt, mortgage, pledge or create or permit to
exist any lien on any shares of stock, indebtedness or other obligations of a
Subsidiary or any Principal Property, whether such shares of stock, indebtedness
or other obligations of a subsidiary or Principal Property are owned at the date
of this Indenture or hereafter acquired, unless the Company secures or causes to
be secured any outstanding Securities equally and ratably with all Debt secured
by such mortgage, pledge or lien, so long as that Debt shall be secured;
provided, however, that this covenant shall not apply in the case of (i) the
creation of any mortgage, pledge or other lien on any shares of stock,
indebtedness or other obligations of a Subsidiary or a Principal Property
hereafter acquired (including acquisitions by way of merger or consolidation) by
the Company or a Subsidiary contemporaneously with such acquisition, or within
120 days
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thereafter, to secure or provide for the payment or financing of any part of the
purchase price thereof, or the assumption of any mortgage, pledge or other lien
upon any shares of stock, indebtedness or other obligations of a Subsidiary or a
Principal Property hereafter acquisitions existing at the time of such
acquisition, or the acquisition of any shares of stock, indebtedness or other
obligations of a Subsidiary or a Principal Property subject to any mortgage,
pledge or other lien without the assumption thereof, provided that any mortgage,
pledge or lien referred to in this clause (i) shall attach only to the shares of
stock, indebtedness or other obligations of a Subsidiary or a Principal Property
so acquired and fixed improvements thereon; (ii) as to any particular series of
Securities, any mortgage, pledge or other lien on any shares of stock,
indebtedness or other obligations of a Subsidiary or a Principal Property
existing on the date that Securities of such series are first issued; (iii) any
mortgage, pledge or other lien on any shares of stock, indebtedness or other
obligations of a Subsidiary or a Principal Property in favor of the Company or
any other Subsidiary; (iv) any mortgage, pledge or other lien on a Principal
Property being constructed or improved securing Debt incurred to finance the
construction or improvements; (v) any mortgage, pledge or other lien on shares
of stock, indebtedness or other obligations of a Subsidiary or a Principal
Property incurred in connection with the issuance by a state or political
subdivisions thereof of any securities the interest on which is exempt from
Federal income taxes by virtue of Section 103 of the United States Internal
Revenue Code of 1986, as amended, or any other laws and regulations in effect at
the time of such issuance; and (vi) any renewal of or substitution for any
mortgage, pledge or other lien permitted by any of the preceding clauses (i)
through (v), provided, in the case of a mortgage, pledge or other lien permitted
under clause (i), (ii) or (iv), the Debt secured is not increased nor the line
extended to any additional assets.
(b) Notwithstanding the provisions of paragraph (a) of this Section 903,
the Company or any Subsidiary may create or assume liens in addition to those
permitted by paragraph (a) of this Section 903, and renew, extend or replace
such liens, provided, that at the time of such creation, assumption, renewal,
extension or replacement, and after giving effect thereto, Exempted Debt does
not exceed 10% of Consolidated Net Tangible Assets.
SECTION 904. Limitation on Sale-Leaseback Transactions.
(a) The Company will not, and will not permit, any Subsidiary to, sell or
transfer, directly or indirectly, except to the Company or a Subsidiary, a
Principal Property as an entirety, or any substantial portion thereof, with the
intention of taking back a lease of all or part of such property except a lease
for a period of three years or less at the end of which it is intended that the
use of such property by the lessee will be discontinued; provided that,
notwithstanding the foregoing, the Company or any Subsidiary may sell a
Principal Property and lease it back for a longer period
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(i) if the Company or such Subsidiary would be entitled, pursuant to the
provisions of Section 903(a), to create a mortgage on the property to be leased
securing Debt in an amount equal to the Attributable Debt with respect to the
sale and lease-back transaction without equally and ratably securing the
outstanding Securities or (ii) if (A) the Company promptly informs the Trustee
of such transactions, (B) the net proceeds of such transactions are at least
equal to the fair value (as determined by a Board Resolution) of such property
and (C) the Company causes an amount equal to the net proceeds of the sale to be
applied to the retirement (whether by redemption, cancellation after open-market
purchases, or otherwise), within 120 days after receipt of such proceeds, of
Funded Debt (including the Securities) and having an outstanding principal
amount equal to the net proceeds.
(b) Notwithstanding the provisions of paragraph (a) of this Section 904,
the Company or any Subsidiary may enter into sale and lease-back transactions in
addition to those permitted by paragraph (a) of this Section 904 and without any
obligation to retire any outstanding Securities or other Funded Debt, provided
that at the time of entering into such sale and lease-back transactions and
after giving effect thereto, Exempted Debt does not exceed 10% of Consolidated
Net Tangible Assets.
SECTION 905. No Lien Created, etc.
This Indenture and the Securities do not create a lien, charge or
encumbrances on any property of the Company or any Subsidiary.
SECTION 906. Compliance Certificate.
The Company shall deliver to the Trustee within 120 days after the end of
each fiscal year of the Company an Officers' Certificate signed by the principal
executive officer, principal financial officer or principal accounting officer
of the Company stating whether or not the signers know of any Default or Event
of Default. If they know of a Default or Event of Default, the certificate shall
describe the Default or Event of Default. The certificate need not comply with
Section 102.
SECTION 907. Commission Reports.
The Company shall file with the Trustee within 15 days after it files them
with the Commission copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the Commission may by rules and regulations prescribe) which the Company is
required to file with the Commission pursuant to Sections 13 or 15(d) of the
Securities Exchange Act of 1934. The Company also shall comply with the other
provisions of Section 314(a) of the Trust Indenture Act.
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SECTION 908. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any particular series of Securities and any related coupons, it will, on or
before each date of the principal of (and premium, if any) or interest, if any,
on any of the Securities of that series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the currency or currency unit
in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series and except
as provided in Sections 311(b), 311(d) and 311(e)) sufficient to pay the
principal (and premium, if any) and interest, if any, so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein provided,
and will promptly notify the Trustee for the Securities of such series of its
action or failure to so act.
Whenever the Company shall have one or more Paying Agents for any
particular series of Securities and any related coupons, the Company will, on or
prior to each due date of the principal of (and premium, if any) or interest, if
any, on any such Securities, deposit with a Paying Agent for the Securities of
such series a sum (in the currency or currency unit described in the preceding
paragraph) sufficient to pay the principal (and premium, if any) and interest,
if any, so becoming due, such sum to be held in trust for the benefit of the
Persons entitled thereto, and (unless such Paying Agent is the Trustee for the
Securities of such series) the Company will promptly notify such Trustee of its
action or failure so to act.
The Company will cause each Paying Agent for any particular series of
Securities other than the Trustee for the Securities of such series to execute
and deliver to such Trustee an instrument in which such Paying Agent shall agree
with such Trustee, subject to the provisions of this Section, that such Paying
Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest, if any, on Securities of that series in trust
for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(2) give such Trustee notice of any default by the Company (or any
other obligor upon the Securities) in the making of any payment of
principal of (or premium, if any) and interest, if any, on Securities of
that series; and
(3) at any time during the continuation of any such default, upon the
written request of such Trustee, forthwith pay to such Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other
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purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee
for the Securities of any series all sums held in trust by the Company or such
Paying Agent, such sums to be held by such Trustee upon the same trusts as those
upon which sums were held by the Company or such Paying Agent; and, upon such
payment by any Paying Agent to such Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee for the Securities of any series or
any Paying Agent, or then held by the Company, in trust for the payment of the
principal of (and premium, if any) and interest, if any, on any Securities of
any particular series and remaining unclaimed for two years after such principal
(and premium, if any) and interest, if any, has become due and payable shall,
unless otherwise required by mandatory provisions of applicable escheat, or
abandoned or unclaimed property law, be paid to the Company on Company Request
or (if then held by the Company) shall be discharged from such trusts; and the
Holder of such Security shall, thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of such Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that such
Trustee or such Paying Agent, before being required to make any such repayment
may give written notice to the Holder of such Security in the manner set forth
in Section 106, or may, in its discretion, in the name and at the expense of the
Company, cause to be published at least once in a newspaper published in the
English language, customarily on each Business Day and of general circulation in
New York, New York notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will,
unless otherwise required by mandatory provisions of applicable escheat, or
abandoned or unclaimed property law, be repaid to the Company.
SECTION 909. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities, the
Company will maintain in each Place of Payment for that series an office or
agency where Securities of that series may be presented or surrendered for
payment, and an office or agency where Securities of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company with respect to the Securities of that series and
this Indenture may be served. If Securities of a series are issuable as Bearer
Securities, the Company will maintain (A) an office or agency in a Place of
Payment for that series in the United States where any Registered Securities of
that series may be presented or surrendered for payment, where any Registered
Securities of that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange for Registered
Securities, where notices and demands to or upon the Company in respect of the
Securities of that series and this
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Indenture may be served and where Bearer Securities of that series and related
coupons may be presented or surrendered for payment in the circumstances
described in the following paragraph (and not otherwise), (B) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
which is located outside the United States, an office or agency where Securities
of that series and related coupons may be presented and surrendered for payment;
provided, however, that if the Securities of that series are listed on the Stock
Exchange or any other stock exchange located outside the United States and such
stock exchange shall so require, the Company will maintain a Paying Agent for
the Securities of that series in Luxembourg or any other required city located
outside the United States, as the case may be, so long as the Securities of that
series are listed on such exchange, and (C) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series located outside the
United States an office or agency where any Registered Securities of that series
may be surrendered for registration of transfer, where Securities of that series
may be surrendered for exchange and where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served. The Company will give prompt written notice to the Trustee for the
Securities of that series of the location, and any change in the location, of
any such office or agency. If at any time the Company shall fail to maintain any
such required office or agency in respect of any series of Securities or shall
fail to furnish the Trustee for the Securities of that series with the address
thereof, such presentations (to the extent permitted by law) and surrenders of
Securities of that series may be made and notices and demands may be made or
served at the Corporate Trust Office of such Trustee, except that Bearer
Securities of that series and the related coupons may be presented and
surrendered for payment at the offices specified in the Security, and the
Company hereby appoints the same as its agent to receive such respective
presentations, surrenders, notices and demands.
No payment of principal (and premium, if any) or interest, if any, on
Bearer Securities shall be made at any office or agency of the Company in the
United States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States.
Payments will not be made in respect of Bearer Securities or coupons
appertaining thereto pursuant to presentation to the Company or their respective
designated Paying Agents within the United States. Notwithstanding the
foregoing, payment of principal of (and premium, if any) and interest, if any,
on any Bearer Security denominated and payable in Dollars will be made at the
office of the Company's Paying Agent in the United States, if, and only if,
payment in Dollars of the full amount of such principal, premium or interest, as
the case may be, at all offices or agencies outside the United States maintained
for that purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
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The Company may also from time to time designate one or more other offices
or agencies (in or outside the Place of Payment) where the Securities of one or
more series may be presented or surrendered for any or all of the purposes
specified above in this Section and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for such purpose. The Company will give prompt written
notice to the Trustee for the Securities of each series so affected of any such
designation or rescission and of any change in the location of any such office
or agency.
If and so long as the Securities of any series (i) are denominated in a
currency other than Dollars or (ii) may be payable in a currency other than
Dollars, or so long as it is required under any other provision of the
Indenture, then the Company will maintain with respect to each such series of
Securities, or as so required, a Currency Determination Agent.
ARTICLE TEN
REDEMPTION OF SECURITIES
SECTION 1001. Applicability of This Article.
Redemption of Securities of any series (whether by operation of a sinking
fund or otherwise) as permitted or required by any form of Security issued
pursuant to this Indenture shall be made in accordance with such form of
Security and this Article, provided, however, that if any provision of any such
form of Security shall conflict with any provision of this Article, the
provision of such form of Security shall govern.
SECTION 1002. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities of any series shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at
the election of the Company of less than all of the Securities of any particular
series, the Company shall, at least 60 days prior to the Redemption Date fixed
by the Company (unless a shorter notice shall be satisfactory to the Trustee for
the Securities of such series) notify such Trustee by Company Request of such
Redemption Date and of the principal amount of Securities of that series to be
redeemed and shall deliver to such Trustee such documentation and records as
shall enable such Trustee to select the Securities to be redeemed pursuant to
Section 1003. In the case of any redemption of Securities of any series prior
to the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee for Securities of such series with an Officers' Certificate evidencing
compliance with such restriction.
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SECTION 1003. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed, the Company may select
the series to be redeemed, and if less than all of the Securities of any series
are to be redeemed, the particular Securities of that series to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Trustee for the Securities of such series, from the Outstanding Securities of
that series not previously called for redemption, by such method as such Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series, or any integral multiple thereof) of the principal
amount of Securities of that series of a denomination larger than the minimum
authorized denomination for Securities of that series pursuant to Section 302 in
the currency or currency unit in which the Securities of such series are
denominated.
The Trustee for the Securities of any series to be redeemed shall promptly
notify the Company in writing of the Securities of such series selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Security redeemed or to be redeemed only in part, to the portion of
the principal amount of such Securities which has been or is to be redeemed.
SECTION 1004. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 106
not later than the thirtieth day and not earlier than the sixtieth day prior to
the Redemption Date, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of a particular series are
to be redeemed, the identification (and, in the case of partial redemption,
the respective principal amounts) of the particular Securities to be
redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security or portion thereof, and that interest
thereon, if any, shall cease to accrue on and after said date,
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(5) the place or places where such Securities, together in the case of
Bearer Securities with all coupons appertaining thereto, if any, maturing
after the Redemption Date are to be surrendered for payment of the
Redemption Price,
(6) that the redemption is for a sinking fund, if such is the case,
(7) that, unless otherwise specified in such notice, Bearer Securities
of any series, if any, surrendered for redemption must be accompanied by
all coupons maturing subsequent to the date fixed for redemption or the
amount of any such missing coupon or coupons will be deducted from the
Redemption Price or security or indemnity satisfactory to the Company, the
Trustee for such series and any Paying Agent is furnished, and
(8) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on this Redemption Date pursuant to Section 305 or otherwise,
the last date, as determined by the Company, on which such exchanges may be
made.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee for such Securities in the name and at the expense of the Company.
SECTION 1005. Deposit of Redemption Price.
At or prior to the opening of business on any Redemption Date, the Company
shall deposit with the Trustee for the Securities to be redeemed or with a
Paying Agent for such Securities (or, if the Company is acting as its own Paying
Agent for such Securities, segregate and hold in trust) an amount of money in
the currency or currency unit in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series and except as provided in Sections 311(b), 311(d) and 311(e))
sufficient to pay the principal amount of (and premium, if any, thereon), and
(except if the Redemption Date shall be an Interest Payment Date) any accrued
interest on, all the Securities which are to be redeemed on that date.
SECTION 1006. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified in the currency or currency unit in which the
Securities of such series are payable (except as otherwise provided pursuant to
Section 301 for the Securities of such series and except as provided in
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Sections 311(b), 311(d) and 311(e)) and from and after such date (unless the
Company shall default in the payment of the Redemption Price) such Securities
shall cease to bear interest and the coupons for such interest appertaining to
any Bearer Securities so to be redeemed, except to the extent provided below,
shall be void. Upon surrender of such Security for redemption in accordance with
said notice together with all coupons, if any, appertaining thereto maturing
after the Redemption Date, such Security or specified portions thereof shall be
paid by the Company at the Redemption Price; provided, however, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons for
such interest, and provided, further, that unless otherwise specified as
contemplated by Section 301, installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be accompanied
by all coupons appertaining thereto maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons or the surrender of such missing
coupon or coupons may be waived by the Company if there is furnished to the
Company, the Trustee for such Security and any Paying Agent such security or
indemnity as they may require to save the Company, such Trustee and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to
such Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; provided, however, that interest
represented by coupons shall be payable only at an office or agency located
outside the United States and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal thereof (and premium, if any, thereon)
shall, until paid, bear interest from the Redemption Date at a rate per annum
equal to the rate borne by the Security (or, in the case of Original Issue
Discount Securities, the Security's Yield to Maturity).
SECTION 1007. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at the Place of Payment (with, if the Company or the Trustee for
such Security so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Security Registrar for such
Security duly executed
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by, the Holder thereof or his attorney duly authorized in writing), and the
Company shall execute and such Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Registered Security or
Securities, of any authorized denomination as requested by such Holder, of the
same series and having the same terms and provisions and in an aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Registered Security so surrendered.
ARTICLE ELEVEN
HOLDERS' MEETINGS
SECTION 1101. Purposes of Meetings.
A meeting of Holders of any or all series may be called at any time and
from time to time pursuant to the provisions of this Article Eleven for any of
the following purposes:
(1) to give any notice to the Company or to the Trustee for such
series, or to give any directions to the Trustee for such series, or to
consent to the waiving of any default hereunder and its consequences, or to
take any other action authorized to be taken by Holders pursuant to any of
the provisions of Article Five;
(2) to remove the Trustee for such series and appoint a successor
Trustee pursuant to the provisions of Article Six;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Article Eight; 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 Outstanding
Securities of any one or more or all series, as the case may be, under any
other provision of this Indenture or under applicable law.
SECTION 1102. Call of Meetings by Trustee.
The Trustee for any series may at any time call a meeting of Holders of
such series to take any action specified in Section 1101, to be held at such
time or times and at such place or places as the Trustee for such series shall
determine. Notice of every meeting of the Holders of any series, setting forth
the time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be given to Holders of such series in the
manner and to the extent provided in Section 106. Such notice shall be given
not less than 20 days nor more than 90 days prior to the date fixed for the
meeting.
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SECTION 1103. Call of Meetings by Company or Holders.
In case at any time the Company, pursuant to a Board Resolution, or
the Holders of a majority in aggregate principal amount of the Outstanding
Securities of a series or of all series, as the case may be, shall have
requested the Trustee for such series to call a meeting of Holders of any or all
such series by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have given the
notice of such meeting within 20 days after the receipt of such request, then
the Company or such Holders may determine the time or times and the place or
places for such meetings and may call such meetings to take any action
authorized in Section 1101, by giving notice thereof as provided in Section
1102.
SECTION 1104. Qualifications for Voting.
To be entitled to vote at any meeting of Holders a Person shall be (a)
a Holder of a Security of the series with respect to which such meeting is being
held or (b) a Person appointed by an instrument in writing as agent or proxy by
such Holder. The only Persons who shall be entitled to be present or to speak
at any meeting of Holders shall be the Persons entitled to vote at such meeting
and their counsel and any representatives of the Trustee for the series with
respect to which such meeting is being held and its counsel and all
representatives of the Company and its counsel.
SECTION 1105. Regulations.
Notwithstanding any other provisions of this Indenture, the Trustee
for any series may make such reasonable regulations as it may deem advisable for
any meeting of Holders of such series, in regard to proof of the holding of
Securities of such series and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of such series as provided in Section 1103, in which case
the Company or the Holders 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 a majority vote of the meeting.
Subject to the provisos in the definition of "Outstanding," at any
meeting each Holder of a Security of the series with respect to which such
meeting is being held or proxy therefor shall be entitled to one vote for each
$1,000 principal amount (or such other amount as shall be specified as
contemplated by Section 301) of Debt Securities of such series held or
represented by him; provided, however, that no vote shall be cast
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or counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote other than by virtue of
Outstanding Securities of such series held by him or instruments in writing duly
designating him as the person to vote on behalf of Holders of Securities of such
series. Any meeting of Holders with respect to which a meeting was duly called
pursuant to the provisions of Section 1102 or 1103 may be adjourned from time to
time by a majority of such Holders present and the meeting may be held as so
adjourned without further notice.
SECTION 1106. Voting.
The vote upon any resolution submitted to any meeting of Holders with
respect to which such meeting is being held shall be by written ballots on which
shall be subscribed the signatures of such Holders or of their representatives
by proxy and the serial number or 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 written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Holders shall be taken
and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was transmitted as provided in Section
1102. The record shall show the serial numbers of the Securities voting in
favor of or against any resolution. The record shall be signed and verified by
the affidavits of the permanent chairman and secretary of the meeting and one of
the duplicates shall be delivered to the Company and the other to the Trustee to
be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 1107. No Delay of Rights by Meeting.
Nothing contained in this Article Eleven shall be deemed or construed
to authorize or permit, by reason of any call of a meeting of Holders or any
rights expressly or impliedly conferred hereunder to make such call, any
hindrance or delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to any Holder under any of the provisions of this
Indenture or of the Securities of any series.
* * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but
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all such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
THE BLACK & DECKER CORPORATION
[SEAL] By: /s/ Charles E. Fenton
---------------------------
Title:
Attest: /s/ Barbara B. Lucas
---------------------------
Secretary
MARINE MIDLAND BANK,
TRUSTEE
[SEAL] By: /s/ Richard G. Pittius
---------------------------------
Title:
Attest: /s/ Eileen M. Hughes
---------------------------
Title:
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EXHIBIT A
[FORM OF CERTIFICATE TO BE DELIVERED TO EUROCLEAR OR CEDEL, S.A. BY OR ON BEHALF
OF A BENEFICIAL OWNER OF SECURITIES, IN ORDER TO RECEIVE A DEFINITIVE BEARER
SECURITY IN EXCHANGE FOR AN INTEREST IN A TEMPORARY GLOBAL SECURITY OR TO
EXCHANGE AN INTEREST IN A TEMPORARY GLOBAL SECURITY FOR AN INTEREST IN A
PERMANENT GLOBAL SECURITY IN DEFINITIVE FORM]
The Black & Decker Corporation
[Insert title or description of Securities]
Reference is hereby made to the Indenture dated as of ________ __, 1994
(the "Indenture") between The Black & Decker Corporation (the "Issuer") and
Marine Midland Bank, as Trustee. Unless otherwise herein defined, terms used
herein have the same meaning as in the Indenture.
This is to certify that as of the date hereof and except as set forth
below, ______ principal amount of the above-captioned Securities held by you for
our account (i) is owned by person(s) that are not United States person(s) (as
defined below), (ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (as defined in Section 1.165-
12(c)(1)(v) of the United States Treasury regulations) ("financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either case (a) or (b),
each such United States financial institution hereby agrees, on its own behalf
or through its agent that you may advise the Issuer or the Issuer's agent that
it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
United States Internal Revenue Code of 1986, as amended, and the Treasury
regulations thereunder), or (iii) is owned by United States or foreign financial
institution(s) for the purpose of resale during the restricted period (as
defined in Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury
regulations), and in addition if the owner of the Securities is a United States
or foreign financial institution described in clause (iii) above (whether or not
also described in clause (i) or (ii)) this is to further certify that such
financial institution has not acquired the Securities for the purpose of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
We undertake to advise you promptly by tested telex on or prior to the date
on which you intend to submit your certification relating to the beneficial
interest in the temporary global Security held by you for our account in
accordance with your operating procedures if any applicable statement herein is
not
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<PAGE>
correct on such date, and in the absence of any such notification it may be
assumed that this certification applies as of such date.
This certificate excepts and does not relate to ______ principal amount of
Securities held by you for our account as to which we are not able to provide a
certificate in this form. We understand that exchange of such portion of the
temporary global Security for definitive Bearer Securities or interests in a
permanent global Security cannot be made until we are able to provide a
certificate in this form.
We understand that this certificate is required in connection with certain
tax laws and regulations of the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
"United States person" means any citizen or resident of the United States, any
corporation, partnership or other entity created or organized in or under the
laws of the United States and any estate or trust the income of which is subject
to United States federal income taxation regardless of its source. "United
States" means the United States of America (including the States and the
District of Columbia); and its "possessions" include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and the Northern Marina
Islands.
By: Dated:
---------------------------------------- ---------------------
As, or as agent for, the beneficial [Not earlier than 15
owner(s) of the portion of the days prior to
temporary global Security to which Exchange Date]
this certificate relates.
A-2
<PAGE>
EXHIBIT B
[FORM OF CERTIFICATE TO BE GIVEN TO THE APPROPRIATE TRUSTEE BY EUROCLEAR OR
CEDEL, S.A. REGARDING THE EXCHANGE OF A TEMPORARY GLOBAL SECURITY FOR DEFINITIVE
SECURITIES OR FOR A PORTION OF A PERMANENT GLOBAL SECURITY IN DEFINITIVE FORM]
The Black & Decker Corporation
[Insert title or description of Securities]
Reference is hereby made to the Indenture dated as of ________ __, 1994
(the "Indenture") between The Black & Decker Corporation (the "Issuer") and
Marine Midland Bank, as Trustee. Unless otherwise herein defined, terms used
herein shall have the same meaning as in the Indenture.
The undersigned certifies that based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
to the effect set forth in the Indenture as of the date hereof, ______ principal
amount of the above-captioned Securities (i) is owned by person(s) that are not
United States person(s) (as defined below), (ii) is owned by United States
person(s) that are (a) foreign branches of United States financial institutions
(as defined in Section 1.165-12(c)(1)(v) of the United States Treasury
regulations) ("financial institutions") purchasing for their own account or for
resale, or (b) United States person(s) who acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such United States financial institution
has agreed, on its own behalf or through its agent, that we may advise the
Issuer or the Issuer's agent that it will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of
1986, as amended, and the Treasury regulations thereunder), or (iii) is owned by
United States or foreign financial institution(s) for the purpose of resale
during the restricted period (as defined in Section 1.163-5(c)(2)(i)(D)(7) of
the United States Treasury regulations), and in addition United States or
foreign financial institutions described in clause (iii) above (whether or not
also described in clause (i) or (ii)) have certified that they have not acquired
the Securities for the purpose of resale directly or indirectly to a United
States person or to a person within the United States or its possessions.
We further certify (i) that we are not making available for exchange or
collection of any interest any portion of the temporary global Security excepted
in such certifications and (ii) that as of the date hereof we have not received
any notification from any of our Member Organizations to the effect that the
statements made by
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<PAGE>
such Member Organizations with respect to any portion of the part submitted
herewith for exchange or collection of any interest are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certificate is required in connection with certain
tax laws and regulations of the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
"United States person" means any citizen or resident of the United States, any
corporation, partnership or other entity created or organized in or under the
laws of the United States and any estate or trust the income of which is subject
to United States federal income taxation regardless of its source. "United
States" means the United States of America (including the States and the
District of Columbia), and its "possessions" include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and the Northern Marina
Islands.
By: Dated:
------------------------------------------ -------------------
[Not earlier than
Exchange Date]
B-2
<PAGE>
EXHIBIT C
[FORM OF CERTIFICATE TO BE GIVEN TO THE APPROPRIATE TRUSTEE BY EUROCLEAR OR
CEDEL, S.A. REGARDING PAYMENTS ON A TEMPORARY GLOBAL SECURITY PRIOR TO AN
EXCHANGE DATE]
The Black & Decker Corporation
[Insert title or description of Securities]
Reference is hereby made to the Indenture dated as of ________ __, 1994
(the "Indenture") between The Black & Decker Corporation (the "Issuer") and
Marine Midland Bank, as Trustee. Unless otherwise herein defined, terms used
herein shall have the same meaning as in the Indenture.
The undersigned certifies that based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
to the effect set forth in the Indenture as of the date hereof, ______ principal
amount of the above-captioned Securities (i) is owned by person(s) that are not
United States person(s) (as defined below), (ii) is owned by United States
person(s) that are (a) foreign branches of United States financial institutions
(as defined in Section 1.165-12(c)(1)(v) of the United States Treasury
regulations) ("financial institutions") purchasing for their own account or for
resale, or (b) United States person(s) who acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such United States financial institution
has agreed, on its own behalf or through its agent, that we may advise the
Issuer or the Issuer's agent that it will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of
1986, as amended, and the Treasury regulations thereunder), or (iii) is owned by
United States or foreign financial institution(s) for the purpose of resale
during the restricted period (as defined in Section 1.163-5(c)(2)(i)(D)(7) of
the United States Treasury regulations), and in addition United States or
foreign financial institutions described in clause (iii) above (whether or not
also described in clause (i) or (ii)) have certified that they have not acquired
the Securities for the purpose of resale directly or indirectly to a United
States person or to a person within the United States or its possessions.
We further certify (i) that we are not making available for exchange or
collection of any interest any portion of the temporary global Security excepted
in such certificates and (ii) that as of the date hereof we have not received
any notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part
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<PAGE>
submitted herewith for exchange or collection of any interest are no longer true
and cannot be relied upon as of the date hereof.
We understand that this certificate is required in connection with certain
tax laws and regulations of the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate of a copy thereof to any interested party in such proceedings.
"United States person" means any citizen or resident of the United States, any
corporation, partnership or other entity created or organized in or under the
laws of the United States and any estate or trust the income of which is subject
to United States federal income taxation regardless of its source. "United
States" means the United States of America (including the States and the
District of Columbia); and its "possessions" include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and the Northern Marina
Islands.
Dated: [Not earlier than Payment Date]
By:
--------------------------------
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<PAGE>
EXHIBIT D
[FORM OF CERTIFICATE TO BE DELIVERED TO EUROCLEAR OR CEDEL, S.A. BY OR ON BEHALF
OF A BENEFICIAL OWNER OF SECURITIES, IN ORDER TO RECEIVE PAYMENT ON A TEMPORARY
GLOBAL SECURITY PRIOR TO AN EXCHANGE DATE]
The Black & Decker Corporation
[Insert title or description of Securities]
Reference is hereby made to the Indenture dated as of ________ __, 1994
(the "Indenture") between The Black & Decker Corporation (the "Issuer") and
Marine Midland Bank, as Trustee. Unless otherwise herein defined, terms used
herein have the same meaning as in the Indenture.
This is to certify that as of the date hereof and except as set forth
below, ______ principal amount of the above-captioned Securities held by you for
our account (i) is owned by person(s) that are not United States person(s) (as
defined below), (ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (as defined in Section 1.165-
12(c)(1)(v) of the United States Treasury regulations) ("financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either case (a) or (b),
each such United States financial institution hereby agrees, on its own behalf
or through its agent, that you may advise the Issuer or the Issuer's agent that
it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
United States Internal Revenue Code of 1986, as amended, and the Treasury
regulations thereunder), or (iii) is owned by financial institution(s) for the
purpose of resale during the restricted period (as defined in Section 1.163-
5(c)(2)(i)(D)(7) of the United States Treasury regulations), and in addition if
the owner of the Securities is a United States or foreign financial institution
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) this is to further certify that such financial institution has not
acquired the beneficial interest in the Securities for the purpose of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
We undertake to advise you promptly by tested telex if the foregoing
statement as to beneficial ownership is not correct on the [insert relevant
payment date], and in the absence of any such notification it may be assumed
that this certification applies as of such date.
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<PAGE>
This certificate excepts and does not relate to ______ principal amount of
Securities held by you for our account as to which we are not able to provide a
certificate in this form. We understand that payments, if any, due prior to the
Exchange Date with respect to such portion of the temporary global Security
cannot be made until we are able to provide a certificate in this form.
We understand that this certificate is required in connection with certain
tax laws and regulations of the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
"United States person" means any citizen or resident of the United States, any
corporation, partnership or other entity created or organized in or under the
laws of the United States and any estate or trust the income of which is subject
to United States federal income taxation regardless of its source. "United
States" means the United States of America (including the States and the
District of Columbia); and its "Possessions" include Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and the Northern Marina
Islands.
Dated: [Not earlier than 15 days prior to Payment Date]
By:
---------------------------------
As, or as agent for, the beneficial
owner(s) of the portion of the
temporary global Security to which
this certificate relates.
D-2
