<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 25, 1994.
REGISTRATION NO. 33-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
THE BLACK & DECKER CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MARYLAND 52-0248090
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
701 EAST JOPPA ROAD
TOWSON, MARYLAND 21286
(410) 716-3900
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
CHARLES E. FENTON
VICE PRESIDENT AND GENERAL COUNSEL
THE BLACK & DECKER CORPORATION
701 EAST JOPPA ROAD
TOWSON, MARYLAND 21286
(410) 716-3900
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
----------------
COPIES TO:
GLENN C. CAMPBELL DAVID J. SORKIN
MILES & STOCKBRIDGE, SIMPSON THACHER & BARTLETT
A PROFESSIONAL CORPORATION 425 LEXINGTON AVENUE
10 LIGHT STREET NEW YORK, NEW YORK 10017
BALTIMORE, MARYLAND 21202 (212) 455-2000
(410) 727-6464
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box. [X]
----------------
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS TO BE OFFERING PRICE AGGREGATE REGISTRATION
OF SECURITIES TO BE REGISTERED REGISTERED(1)(2) PER UNIT(3) OFFERING PRICE(3) FEE
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<S> <C> <C> <C> <C>
Debt Securities........ $500,000,000 100% $500,000,000 $172,414
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</TABLE>
(1) In United States dollars or the equivalent thereof in other currencies or
composite currencies on the basis of exchange rates in effect on the date
an agreement to sell the applicable Debt Securities is entered into by the
Registrant.
(2) Or, if any Debt Securities are issued at an original issue discount, such
greater amount as may result in an aggregate offering price of
$500,000,000.
(3) Estimated solely for purposes of calculating the registration fee.
----------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY, NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED MAY 25, 1994
PROSPECTUS
$500,000,000
(LOGO OF BLACK & DECKER APPEARS HERE)
DEBT SECURITIES
----------
The Black & Decker Corporation (the "Corporation") from time to time may
offer debt securities in one or more series (the "Debt Securities"), which Debt
Securities may consist of debentures, notes or other unsecured evidences of
indebtedness, in an amount sufficient to result in an aggregate initial
offering price not to exceed $500,000,000 (or the equivalent in one or more
foreign denominated currencies or units based on or relating to currencies,
including European Currency Units). The Debt Securities may be offered as
separate series in amounts, at prices, and on terms to be determined by market
conditions at the time of sale. The Debt Securities may be sold in United
States dollars or one or more foreign denominated currencies or units based on
or relating to currencies, and the principal of (and premium, if any) and
interest, if any, on the Debt Securities may likewise be payable in United
States dollars or one or more foreign denominated currencies or units based on
or relating to currencies. The Debt Securities may be issued in registered or
bearer form. Debt Securities issued in bearer form, subject to certain
exceptions, will not be offered or sold to persons who are within the United
States or to United States persons. See "Limitations on Issuance of Bearer
Securities." All or a portion of the Debt Securities may be evidenced by a
Global Security or Global Securities.
The accompanying Prospectus Supplement and Pricing Supplement (if applicable)
set forth, with regard to the Debt Securities in respect of which this
Prospectus is being delivered, the title, aggregate principal amount, currency
denominations, maturity, rate (which may be fixed or variable) and time of
payment of any interest, any terms for redemption at the option of the
Corporation or the holder, any terms for sinking fund payments, any listing on
a securities exchange, the initial public offering price and any other terms in
connection with the offering and sale of the Debt Securities or a series of the
Debt Securities.
The Corporation may sell Debt Securities to or through underwriters or
dealers, and also may sell Debt Securities directly to other purchasers or
through agents. If underwriters are used in the sale, the Debt Securities may
be offered to the public either through underwriting syndicates represented by
one or more managing underwriters or directly by one or more of such firms. See
"Plan of Distribution." The accompanying Prospectus Supplement sets forth the
names of any underwriters, dealers or agents involved in the sale of the Debt
Securities in respect of which this Prospectus is being delivered, the
principal amounts, if any, to be purchased by underwriters or dealers, and the
compensation, if any, of those underwriters, dealers or agents. The net
proceeds to the Corporation from the sale of the Debt Securities in respect of
which this Prospectus is being delivered are set forth in the Prospectus
Supplement or in the Pricing Supplement (if applicable). See "Plan of
Distribution" for possible indemnification arrangements for underwriters,
dealers and agents.
----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURI-
TIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
----------
, 1994
<PAGE>
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS OR IN AN APPLICABLE PROSPECTUS SUPPLEMENT OR
PRICING SUPPLEMENT IN CONNECTION WITH ANY OFFER MADE BY THIS PROSPECTUS AND
SUCH PROSPECTUS SUPPLEMENT AND PRICING SUPPLEMENT AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE CORPORATION OR ANY UNDERWRITER, DEALER, AGENT OR OTHER PERSON. NEITHER
THE DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT OR PRICING
SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL UNDER ANY
CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE CORPORATION SINCE THE DATE HEREOF OR THEREOF OR THAT THE
INFORMATION CONTAINED HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO
ITS DATE. THIS PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT AND PRICING SUPPLEMENT
DO NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY JURISDICTION TO ANY
PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH
JURISDICTION.
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 5th Street,
N.W., Washington, D.C. 20549, and at the following regional offices of the
Commission: New York Office, Seven World Trade Center, 13th Floor, New York,
New York 10048; and Chicago Office, Northwestern Atrium Center, Suite 1400, 500
West Madison Street, Chicago, Illinois 60661. Copies of such material can be
obtained from the Public Reference Section of the Commission at 450 5th Street,
N.W., Washington, D.C. 20549, at prescribed rates. In addition, such reports,
proxy statements and other information can be inspected at the offices of the
New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005, and
the Pacific Stock Exchange Incorporated, 301 Pine Street, San Francisco,
California 94104.
The Corporation has filed with the Commission a Registration Statement on
Form S-3 (together with all amendments, documents incorporated by reference and
exhibits, the "Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the Debt Securities offered
hereby. This Prospectus and the Prospectus Supplement, which constitute a part
of the Registration Statement, do not contain all the information set forth in
the Registration Statement, certain parts of which are contained in exhibits to
the Registration Statement or otherwise have been omitted in accordance with
the rules and regulations of the Commission. For further information, reference
is made to the Registration Statement and to the documents incorporated therein
by reference. Copies of the Registration Statement are on file at the offices
of the Commission and may be obtained upon payment of the fees prescribed by
the Commission, or examined without charge at the public reference facilities
of the Commission described above.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The Corporation's Annual Report on Form 10-K for the year ended December 31,
1993, Quarterly Report on Form 10-Q for the quarter ended April 3, 1994 and
Current Report on Form 8-K dated January 20, 1994, are incorporated by
reference herein and made a part hereof. All documents filed by the Corporation
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the Debt Securities shall be deemed to be
incorporated by reference and to be a part of this Prospectus from the date of
filing of such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such a
statement. A statement so modified or superseded shall not be deemed, except as
so modified or superseded, to constitute a part of this Prospectus.
2
<PAGE>
The Corporation will provide, without charge, to each person to whom this
Prospectus is delivered, upon written or oral request, a copy of any and all of
the documents incorporated herein by reference other than exhibits to such
documents (unless such exhibits are specifically incorporated by reference in
such documents). Requests should be directed to The Black & Decker Corporation,
701 East Joppa Road, Towson, Maryland 21286, Attention: Corporate Affairs,
(800) 992-3042.
----------------
FOR FLORIDA RESIDENTS
Emhart (U.K.) Limited, a subsidiary of the Corporation located in the United
Kingdom, from time to time has provided spare parts to be incorporated into
machinery used in the production of glass containers manufactured by
Cubaequipos of Havana, Cuba. Transactions with Cubaequipos are subject to the
provisions of the Cuban Assets Control Regulations and have been consummated in
accordance with all applicable United States laws and regulations pursuant to
specific licenses issued from time to time thereunder by the Office of Foreign
Assets Control ("OFAC") of the United States Department of the Treasury. OFAC
issued a license to complete the delivery of spare parts pursuant to a contract
that predated the Cuban Democracy Act of 1992. The Cuban Democracy Act of 1992
prohibits OFAC from issuing additional licenses after October 23, 1992, except
in connection with contracts entered into prior to that date. At this time, it
is not clear whether OFAC will issue any additional licenses in light of the
prohibitions set forth in the Cuban Democracy Act of 1992.
The information set forth above is accurate as of the date hereof. Current
information concerning the Corporation's business dealings with the government
of Cuba or with any person or affiliate located in Cuba may be obtained from
the Division of Securities and Investor Protection of the Florida Department of
Banking and Finance, The Capital, Tallahassee, Florida 32399-0350, telephone
number (904) 488-9805.
3
<PAGE>
THE CORPORATION
The Black & Decker Corporation (the "Corporation"), incorporated in Maryland
in 1910, is a global marketer and manufacturer of products used in and around
the home and for various commercial applications. The Corporation markets its
products in over 100 countries and enjoys worldwide brand name recognition.
The Corporation operates in three business segments: Consumer and Home
Improvement Products, including consumer and professional power tools and
accessories, household products, security hardware, lawn and garden and
recreational outdoor products, plumbing products, and product service;
Commercial and Industrial Products, including fastening systems and glass
container-making equipment; and Information Systems and Services, including
government and commercial information systems development, consulting, and
other related contract services.
The Corporation's principal executive offices are located at 701 East Joppa
Road, Towson, Maryland 21286. The telephone number of the Corporation is (410)
716-3900.
USE OF PROCEEDS
Except as otherwise stated in the Prospectus Supplement in respect of which
this Prospectus is being delivered, the net proceeds from the sale of the Debt
Securities offered by the Corporation will be added to the general funds of the
Corporation and will be available for general corporate purposes, which may
include but are not limited to refinancing of indebtedness, working capital and
capital expenditures.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for the
quarters ended April 3, 1994 and April 4, 1993, each of the last five fiscal
years and for the three-month Transition Period ended December 31, 1989. The
Transition Period resulted from the Corporation's change in its fiscal year
from the last Sunday in September to December 31, effective for the 1990 fiscal
year.
<TABLE>
<CAPTION>
QUARTER YEAR ENDED
ENDED DECEMBER 31 YEAR ENDED
--------------- -------------------- ------------
APRIL 3 APRIL 4 TRANSITION SEPTEMBER 24
1994 1993 1993 1992 1991 1990 PERIOD 1989
------- ------- ---- ----- ---- ---- ---------- ------------
(DOLLARS IN MILLIONS)
(UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to
fixed charges.......... 1.41 1.46 1.75 -- 1.32 1.29 -- 1.25
Deficiency in the
coverage of fixed
charges by earnings
before fixed charges... -- -- -- $29.0 -- -- $2.0 --
</TABLE>
The ratio of earnings to fixed charges equals earnings before fixed charges
divided by fixed charges. For purposes of calculating the ratio of earnings to
fixed charges, earnings before fixed charges consist of earnings (loss) before
income taxes, extraordinary item, and cumulative effects of changes in
accounting principles, plus fixed charges. Fixed charges consist of interest
expense (including amortization of debt expense and discount or premium
relating to any indebtedness), capitalized interest and that portion of rental
expense representative of the interest factor.
4
<PAGE>
Exclusive of the accrual of $142.4 million before income taxes in connection
with a restructuring of certain of its operations, the ratio of earnings to
fixed charges for the year ended December 31, 1992, would have been 1.43.
DESCRIPTION OF DEBT SECURITIES
The following description of the Debt Securities sets forth certain general
terms and provisions of the Debt Securities to which any Prospectus Supplement
and Pricing Supplement (if applicable) may relate. The particular terms of the
Debt Securities offered by any Prospectus Supplement and Pricing Supplement (if
applicable) (the "Offered Debt Securities"), including the nature of any
variation from the following general provisions applicable to the Offered Debt
Securities, will be described in the Prospectus Supplement and Pricing
Supplement (if applicable) relating to the Offered Debt Securities.
The Offered Debt Securities are to be issued in one or more series under an
indenture (as it may be supplemented by a supplemental indenture described in
any Prospectus Supplement for any series of Debt Securities, the "Indenture")
between the Corporation and Marine Midland Bank, as Trustee (the "Trustee"), a
copy of which Indenture is filed as an exhibit to the Registration Statement.
The following summaries of certain provisions of the Indenture do not purport
to be complete and are subject to, and are qualified in their entirety by
reference to, all provisions of the Indenture, including definitions of certain
terms. Provisions of or defined terms in the Indenture that are used in this
Prospectus are incorporated by reference.
GENERAL
The Indenture does not limit the aggregate principal amount of debentures,
notes or other evidences of indebtedness that may be issued thereunder and
provides that Debt Securities may be issued in one or more series in an
aggregate principal amount which may be authorized from time to time by the
Corporation. The Debt Securities will be unsecured obligations of the
Corporation and, except as otherwise provided in the Prospectus Supplement in
respect of which this Prospectus is being delivered, will rank equally with all
other unsecured and unsubordinated debt of the Corporation. Any other unsecured
and unsubordinated indebtedness may contain covenants, events of default and
other provisions which are different from or which are not contained in the
Debt Securities.
Reference is made to the Prospectus Supplement for the following terms of the
Offered Debt Securities: (1) the title of the Offered Debt Securities; (2) the
price (expressed as a percentage of the aggregate principal amount thereof) at
which the Offered Debt Securities will be issued; (3) any limit on the
aggregate principal amount of the Offered Debt Securities or the series of
which the Offered Debt Securities are a part; (4) the date or dates (or manner
of determining the same) on which the Offered Debt Securities will mature; (5)
the rate or rates (which may be fixed or variable) per annum (or the manner of
determining the same) at which the Offered Debt Securities will bear interest,
if any, and the date or dates from which such interest will accrue; (6) the
date or dates on which such interest will be payable (or the manner of
determining the same) and the record dates for Interest Payment Dates for
Registered Securities; (7) the place or places where the principal of (and
premium, if any) and interest, if any, on the Offered Debt Securities will be
payable and each office or agency where the Offered Debt Securities may be
presented for transfer or exchange; (8) if the trustee in respect of the
Offered Debt Securities is other than the Trustee (or any successor thereto),
the identity of the trustee; (9) any mandatory or optional sinking fund or
purchase fund or analogous provision and the terms and conditions thereof; (10)
any provisions relating to the date after which, the circumstances under which,
and the price or prices at which the Offered Debt Securities may, pursuant to
any optional or mandatory redemption provisions, be redeemed at the option of
the Corporation or of the holder thereof and certain other terms and provisions
of such optional or mandatory redemption; (11) if the amount payable upon
acceleration of the Offered Debt Securities is other than the full principal
amount, the portion of the principal amount payable upon acceleration; (12) any
provisions relating to the conversion of Offered Debt Securities into Debt
Securities of another series or any other securities; (13) any provisions
restricting
5
<PAGE>
defeasance of the Offered Debt Securities; (14) if the right of payment with
respect to the Offered Debt Securities is subordinated to the right of payment
with respect to any other indebtedness of the Corporation, the terms and
conditions of subordination; (15) if the Offered Debt Securities will be
issued, in whole or in part, in the form of one or more temporary or permanent
Global Securities, the identity of the depositary for such Global Securities;
(16) whether the Offered Debt Securities are to be issued as Registered
Securities, Bearer Securities or both and the terms upon which any Bearer
Securities of such series may be exchanged for Registered Securities of such
series; (17) if other than United States dollars, the currency or currencies
(including ECU) in which the Offered Debt Securities may be purchased, and the
currency or currencies (including ECU) in which the principal of and premium,
if any, and interest, if any, on such Offered Debt Securities may be payable;
(18) if the currency for which the Offered Debt Securities may be purchased or
in which the principal of (and premium, if any) or interest, if any, on the
Offered Debt Securities may be payable is at the election of the Holder
thereof, the manner of such election; (19) any index used to determine the
amount of payments of principal of (and premium, if any) or interest, if any,
on the Offered Debt Securities; (20) if the amounts of payments of principal of
(and premium, if any) or interest, if any, on the Offered Debt Securities may
be, at the election of the Corporation or a Holder thereof, determined with
reference to an index based on a currency or currency unit other than that in
which the Offered Debt Securities are stated to be payable, the manner in which
such amounts are to be determined; and (21) any other terms of the Offered Debt
Securities not inconsistent with the provisions of the Indenture.
The Debt Securities may be issuable as Registered Securities, Bearer
Securities or both. Bearer Securities, subject to certain exceptions, will not
be offered or sold to persons who are within the United States or to United
States persons. See "Limitations on Issuance of Bearer Securities." Unless
otherwise indicated in the Prospectus Supplement relating thereto, Registered
Securities denominated in U.S. dollars will be issued only in denominations of
$1,000 or any integral multiple thereof, and Bearer Securities denominated in
U.S. dollars will be issued only in denominations of $5,000. The Pricing
Supplement or Prospectus Supplement relating to a series of Debt Securities
denominated in a foreign currency or currency unit will specify the
denominations thereof. In the case of Global Securities, one or more Global
Securities will be issued in a denomination or aggregate denominations equal to
the aggregate principal amount of Outstanding Debt Securities of the series to
be represented by such Global Securities. No service charge will be made for
any transfer or exchange of Debt Securities, but the Corporation may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. For certain information about Debt Securities
issued in global form, see "Description of Debt Securities--Global Securities."
In connection with its sale during the "restricted period" as defined in
Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury regulations
(generally, the first 40 days after the closing date and, with respect to
unsold allotments, until sold), no Bearer Security shall be offered or sold to
persons who are within the United States or to United States persons or mailed
or otherwise delivered to any location in the United States (as defined below
under "Limitations on Issuance of Bearer Securities") and any such Bearer
Security (other than a temporary Global Security in bearer form) may be
delivered only if (i) the person entitled to receive such Bearer Security
furnishes written certification, in the form required by the Indenture, to the
effect that such Bearer Security is not being acquired by or on behalf of a
United States person (as defined below under "Limitations on Issuance of Bearer
Securities"), or (ii) if a beneficial interest in such Bearer Security is being
acquired by or on behalf of a United States person, that United States person
is a person described in Section 1.163-5(c)(2)(i)(D)(6) of the United States
Treasury regulations or is a financial institution who has purchased such
Bearer Security for resale during the restricted period and who certifies that
it has not acquired such Bearer Security for purposes of resale directly or
indirectly to a United States person or to a person within the United States or
its possessions. See "Description of Debt Securities--Global Securities" and
"Limitations on Issuance of Bearer Securities."
At the option of the Holder and subject to the terms of the Indenture, Bearer
Securities (with all unmatured coupons, except as provided below) of any series
will be exchangeable into an aggregate principal amount of Registered
Securities (if the Debt Securities of such series are issuable as Registered
Securities) or
6
<PAGE>
Bearer Securities of the same series (with the same interest rate and maturity
date) and Registered Securities of any series (other than a Global Security)
will be exchangeable into an equal aggregate principal amount of Registered
Securities of the same series (with the same interest rate and maturity date)
of different authorized denominations. If a Holder surrenders Bearer Securities
in exchange for Registered Securities between a Regular Record Date or in
certain circumstances a Special Record Date and the relevant Interest Payment
Date, the Holder will not be required to surrender the coupon related to such
interest payment date. Registered Securities may not be exchanged for Bearer
Securities.
Debt Securities may be presented for exchange and Registered Securities
(other than a Global Security) may be presented for transfer (with the form of
transfer endorsed thereon duly executed) at the office of the Trustee or at the
office of the Security Registrar, without service charge and upon payment of
any taxes and other governmental charges as described in the Indenture. Such
transfer or exchange will be effected by the Trustee or the Security Registrar,
as the case may be, being satisfied with the documents of title and identity of
the person making the request. Bearer Securities will be transferable by
delivery.
Debt Securities bearing no interest or interest at a rate that at the time of
issuance is below the prevailing market rate will be sold at a discount below
their stated principal amount. One or more series of Debt Securities may be
floating rate debt securities, exchangeable for fixed rate debt securities.
Special United States federal income tax considerations applicable to any such
discounted or floating rate Debt Securities or to certain Debt Securities
issued at par which are treated as having been issued at a discount for United
States federal income tax purposes will be described in the Prospectus
Supplement in respect of which this Prospectus is being delivered, if
applicable.
Debt Securities may be issued, from time to time, with the principal amount
(and premium, if any) payable on the applicable principal payment date, or the
amount of interest, if any, payable on the applicable interest payment date, to
be determined by reference to one or more currency exchange rates, commodity
prices, equity indices or other factors. In such cases, holders of such Debt
Securities may receive a principal amount (and premium, if any) on any
principal payment date, or a payment of interest, if any, on any interest
payment date, that is greater than or less than the amount of principal (and
premium, if any) or interest payable on such dates, depending upon the value on
such dates of the applicable currency, commodity, equity index or other factor.
Information as to the methods for determining the amount of principal (and
premium, if any) or interest, if any, payable on any date, the currencies,
commodities, equity indices or the factors to which the amount payable on such
date is linked and certain additional tax considerations applicable to the
Offered Debt Securities will be set forth in the Prospectus Supplement in
respect of which this Prospectus is being delivered, if applicable.
The Indenture does not limit the amount of additional unsecured indebtedness
that the Corporation or its Subsidiaries may incur. Unless otherwise specified
in the resolutions or any supplemental indenture establishing the terms of the
Offered Debt Securities, the terms of the Offered Debt Securities or the
covenants contained in the Indenture do not afford holders of the Offered Debt
Securities protection in the event of a highly leveraged or other similar
transaction involving the Corporation that may adversely affect
Securityholders. See "Description of Debt Securities--Certain Covenants." The
operations of the Corporation are conducted through its subsidiaries and,
therefore, the Corporation is substantially dependent on the earnings and cash
flow of its subsidiaries to meet its debt obligations, including its
obligations in respect of the Debt Securities. Because the assets of its
subsidiaries constitute effectively all of the assets of the Corporation, the
claims of the holders of the Debt Securities effectively will be subordinated
to the claims of creditors of the Corporation's subsidiaries.
PAYMENT AND PAYING AGENTS
Payment of principal of (and premium, if any) and interest, if any, on Bearer
Securities will be payable in the currency designated in the applicable Pricing
Supplement or related Prospectus Supplement, subject to any applicable laws and
regulations, at such paying agencies outside the United States as the
Corporation may appoint from time to time. Such payment may be made, at the
option of the Holder, by a check in the
7
<PAGE>
designated currency or by transfer to an account in the designated currency
maintained by the payee with a bank located outside the United States. No
payment of interest on a Bearer Security will be made unless on the earlier of
the date of the first such payment by the Corporation or the date of delivery
by the Corporation of a definitive Bearer Security, including a permanent
Global Security, a written certificate, in the form required by the Indenture
is provided to the Corporation stating that on such date the Bearer Security is
not owned by or on behalf of a United States person or if a beneficial interest
in such Bearer Security is owned by or on behalf of a United States person,
that such United States person is a person described in Section 1.163-
5(c)(i)(2)(D)(6) of the United States Treasury regulations or is a financial
institution who has purchased such Bearer Security for resale during the
restricted period and who certifies that it has not acquired such Bearer
Security for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions. No payment
with respect to any Bearer Security will be made at the Corporate Trust Office
of the Trustee or any other paying agency maintained by the Corporation in the
United States nor will any such payment be made by transfer to an account or by
mail to an address in the United States. Notwithstanding the foregoing,
payments of principal of (and premium, if any) and interest, if any, on Bearer
Securities denominated and payable in U.S. dollars will be made at the offices
of the Paying Agent in the United States with respect thereto in the City of
New York if payment of the full amount thereof in U.S. dollars at all paying
agencies outside the United States is illegal or effectively precluded by
exchange controls or other similar restrictions.
Payment of principal of (and premium, if any) on Registered Securities will
be made in the designated currency against surrender of such Registered
Securities at the Corporate Trust Office of the Paying Agent with respect
thereto in the City of New York. Unless otherwise indicated in the related
Prospectus Supplement payment of any installment of interest on a Registered
Security will be made to the person in whose name such Debt Security is
registered at the close of business on the Regular Record Date for such
interest. Unless otherwise indicated in the related Prospectus Supplement,
payments of such interest will be made at the Corporate Trust Office of the
Trustee for such Security in the City of New York or at the Corporation's
option, by a check in the designated currency mailed to the Holder at such
Holder's registered address or by transfer to an account in the designated
currency maintained by the payee.
The Paying Agents outside the United States initially appointed by the
Corporation for a series of Debt Securities will be named in the related
Prospectus Supplement. The Corporation may terminate the appointment of any of
the Paying Agents from time to time, except that the Corporation will maintain
at least one Paying Agent in a city outside the United States so long as any
Bearer Securities are outstanding where Bearer Securities may be presented for
payment and may be surrendered for exchange, provided that so long as any
series of Debt Securities is listed on the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Corporation will maintain a Paying Agent in Luxembourg or
any other required city located outside the United States, as the case may be,
for such series of Debt Securities.
All moneys paid by the Corporation to a Paying Agent for the payment of
principal of (or premium, if any) or interest, if any, on any Debt Security
that remains unclaimed at the end of two years will be repaid to the
Corporation, unless otherwise prohibited by mandatory provisions of applicable
escheat or abandoned or unclaimed property law, will be repaid to the
Corporation, and the Holder of such Debt Security or any coupon appertaining
thereto will thereafter look only to the Corporation for payment thereof.
GLOBAL SECURITIES
Debt Securities of any series may be issued, in whole or in part, in the form
of one or more Global Securities that will be deposited with a depositary (the
"Depositary") or with a nominee for a Depositary identified in the Prospectus
Supplement relating to such series. Global Securities may be issued in either
Registered or Bearer form and in temporary or permanent form. Unless and until
it is exchanged in whole or in part for Debt Securities in definitive
registered form, a Global Security may not be transferred except as a whole by
the Depositary to a nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary or by the Depositary or
any nominee to a successor Depositary or a nominee of any successor.
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The terms of the depositary arrangement with respect to any series of Debt
Securities to be represented by a Global Security will be described in the
Prospectus Supplement relating to such series. The Corporation anticipates that
the provisions set forth below will apply to such depositary arrangements.
Upon the issuance of a Global Security, the Depositary will credit, on its
book-entry registration and transfer system, the respective principal amounts
of the Debt Securities represented by such Global Security to the accounts of
persons that have accounts with such Depositary ("participants"). The accounts
to be credited shall be designated by any underwriters or agents participating
in the distribution of such Debt Securities or by the Corporation if the Debt
Securities are offered and sold directly by the Corporation. Ownership of
beneficial interest in a Global Security will be limited to participants or
persons that hold interests through participants, but the Corporation has no
obligations to any persons that hold interests through participants. Ownership
of beneficial interests in such Global Security will be shown on, and the
transfer of that ownership will be effected only through, records maintained by
the Depositary for such Global Security (with respect to interests of
participants) or by participants or persons that hold through participants
(with respect to interests of persons other than participants). The laws of
some states require that certain purchasers of securities take physical
delivery of the securities in definitive form. Such limits and such laws may
impair the ability to transfer beneficial interests in a Global Security.
As long as the Depositary or its nominee is the owner of such Global
Security, the Depositary or its nominee, as the case may be, will be considered
the sole owner or holder of the Debt Securities represented by the Global
Security for all purposes under the Indenture. Except as set forth below,
owners of beneficial interests in a Global Security will not be entitled to
have the Debt Securities represented by such Global Security registered in
their names, will not receive or be entitled to receive physical delivery of
such Debt Securities in definitive form and will not be considered the owners
or holders thereof under the Indenture.
Subject to the restrictions discussed above under "Payment and Paying
Agents," payments of principal (and premium, if any) and interest, if any, on
Debt Securities represented by a Global Security registered in the name of or
held by a Depositary or its nominee will be made to the Depositary or its
nominee, as the case may be, as the registered owner or the holder of such
Global Security. Neither the Corporation, the Trustee, any Paying Agent nor the
Security Registrar for such Debt Securities will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests in such Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
The Corporation expects that the Depositary for any Debt Securities
represented by a Global Security, upon receipt of any payment of principal (and
premium, if any) or interest, if any, in respect of a permanent Global Security
will, except as provided below, immediately credit participants' accounts with
payments in amounts proportionate to their respective beneficial interests in
the principal amount of such Global Security as shown on the records of the
Depositary. The Corporation also expects that payments by participants to
owners of beneficial interests in such Global Security held through such
participants will be governed by standing instructions and customary practices,
as is now the case with the securities held for the accounts of customers in
bearer form or registered in "street names" and will be the responsibility of
such participants. Receipt by owners of beneficial interests in a temporary
Global Security of payments in respect of such temporary Global Security will
be subject, in the case of a Global Security representing Bearer Securities, to
the furnishing of the certificate described above under "Payment and Paying
Agents."
If the Depositary for any Debt Securities represented by a Global Security is
at any time unwilling or unable to continue as depositary and a successor
depositary is not appointed by the Corporation within 90 days, the Corporation
will issue Debt Securities in definitive form in exchange for such Global
Security. In addition, the Corporation may at any time and in its sole
discretion determine not to have any of the Debt Securities of a series
represented by one or more Global Securities and, in such event, will issue in
exchange therefor Debt Securities of such series in definitive form. Further,
if the Corporation so specifies with respect to the Debt Securities of a
series, an owner of a beneficial interest in a Global Security representing
Debt
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Securities of that series may, on terms acceptable to the Corporation and the
Depositary for such Global Security, receive Debt Securities of such series in
definitive form. In any such instance, an owner of a beneficial interest in a
Global Security will be entitled to physical delivery in definitive form of
Debt Securities of the series represented by such Global Security equal in
principal amount to such beneficial interest and to have such Debt Securities
registered in its name (if the Debt Securities of such series are issuable as
Registered Securities). Debt Securities of such series so issued in definitive
form will be issued (a) as Registered Securities in denominations, unless
otherwise specified by the Corporation, of $1,000 and integral multiples
thereof if the Debt Securities of such series are issuable as Registered
Securities and are denominated in United States dollars, (b) as Bearer
Securities in denominations, unless otherwise specified by the Corporation, of
$5,000 if the Debt Securities of such series are issuable as Bearer Securities
and are denominated in United States dollars or (c) as either Registered or
Bearer Securities, if the Debt Securities of such series are issuable in either
form. See, however, "Limitations on Issuance of Bearer Securities" below for
description of certain restrictions on the issuance of a Bearer Security in
definitive form in exchange for an interest in a temporary Global Security.
AMENDMENT, SUPPLEMENT AND WAIVER
Modifications and amendments of the Indenture, the Debt Securities and any
related coupon may be made by the Corporation and the Trustee with the consent
of the Holders of a majority in principal amount of the Outstanding Debt
Securities of each series issued under the Indenture affected by such
modification or amendment; provided, however, that no such modification or
amendment may, without the consent of the Holder of each Outstanding Debt
Security affected thereby, (a) change the Stated Maturity of the principal of,
or any installment of principal of or interest, if any, on any Debt Security or
any related coupon, (b) reduce the principal amount of or rate of interest, if
any, on any Debt Security, or any related coupon or any premium payable upon
the redemption thereof, (c) reduce the amount of principal of a Discounted
Security payable upon acceleration of the Maturity thereof, (d) change the
Place of Payment, (e) change the currency or currency unit of payment of
principal of (or premium, if any) or interest, if any, on any Debt Security or
any related coupon, (f) impair the right to institute suit for the enforcement
of any payment on or with respect to any Debt Security, or any related coupon
on or after the Stated Maturity thereof (or in the case of redemption on or
after the Redemption Date) or (g) reduce the percentage in principal amount of
Outstanding Securities of any series, the consent of the Holders of which is
required for modification or amendment of the Indenture or for waiver of
compliance with certain provisions of the Indenture or for waiver of certain
Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series may on behalf of the Holders of all
Debt Securities of that series waive, insofar as the series is concerned,
compliance by the Corporation with certain restrictive provisions of the
Indenture. The Holders of not less than a majority of principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all Debt
Securities of that series and any coupons appertaining thereto waive any past
default under the Indenture with respect to that series, except a default in
the payment of the principal of (or premium, if any) and interest, if any, on
any Debt Security of that series or in respect of a provision which under the
Indenture cannot be modified or amended without the consent of the Holder of
each Outstanding Debt Security of that series affected. The Indenture and the
Debt Securities may be amended or supplemented, without the consent of any
Holder of Debt Securities, to cure any ambiguity or inconsistency or to make
any change that does not have a materially adverse effect on the rights of any
Holder of Debt Securities.
CERTAIN COVENANTS
Unless otherwise specified in the Board Resolution or Resolutions or any
supplemental indenture establishing the terms of the Debt Securities of any
series, the terms of the Debt Securities of any series or the covenants
contained in the Indenture do not afford holders of Debt Securities protection
in the event of a highly leveraged or other similar transaction involving the
Corporation that may adversely affect Securityholders. If the Offered Debt
Securities contain, or a future supplemental indenture contains,
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covenants to afford Securityholders protection in the event of a highly
leveraged or similar transaction, the Prospectus Supplement or Pricing
Supplement relating to the Offered Debt Securities will provide a brief
description of such protective covenants. The Indenture does not limit the
amount of additional unsecured indebtedness that the Corporation or its
Subsidiaries may incur.
General. The Indenture requires the Corporation to covenant to the following
with respect to each series of Debt Securities: (i) to promptly pay the
principal of (and premium, if any) and interest, if any, on such series of Debt
Securities and any related coupons; (ii) to maintain an office or agency in
each place where Debt Securities and any related coupons may be presented,
surrendered for payment, transferred or exchanged and where notice upon the
Corporation may be served; (iii) if the Corporation acts as its own Paying
Agent for any series of Securities, to segregate and hold in trust for the
benefit of the persons entitled thereto a sum sufficient to pay the principal
of (and premium, if any) or interest, if any, as the same becomes due; (iv) to
deliver to the Trustee, within 120 days after the end of each fiscal year, a
written statement to the effect that the Corporation has complied with its
obligations under the Indenture; and (v) to deliver to the Trustee copies of
annual and other reports that the Corporation files with the Commission within
15 days after filing such reports with the Commission.
Limitations on Liens. Unless otherwise specified in the Prospectus
Supplement in respect of which this Prospectus is being delivered, and subject
to the following sentence as well as to the exceptions set forth below under
the caption "Exempted Debt," the Corporation will not, and will not permit any
Subsidiary (as hereinafter defined) to, directly or indirectly, as security for
any Debt (as hereinafter defined), mortgage, pledge or create or permit to
exist any lien on any shares of stock, indebtedness or other obligations of a
Subsidiary or Principal Property (as hereinafter defined), whether such shares
of stock, indebtedness or other obligations of a Subsidiary or Principal
Property are owned at the date of the Indenture or thereafter acquired, unless
the Corporation 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 so secured. This restriction will not apply to,
among other things, certain mortgages, pledges or other liens on any shares of
stock, indebtedness or other obligations of a Subsidiary or a Principal
Property (i) existing at the time of the acquisition thereof (or within 120
days thereafter) or incurred to secure or provide for the payment or financing
of any part of the purchase price thereof; (ii) as to any particular series of
Debt Securities, existing on the date that Debt Securities of such series are
first issued; (iii) in favor of the Corporation or any Subsidiary; (iv)
securing Debt incurred to finance construction of or improvements to a
Principal Property; (v) incurred in connection with the issuance by a state or
political subdivision thereof of certain tax exempt securities; and (vi)
certain other mortgages, pledges and liens.
"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 extendable 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 Corporation'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 Corporation as a
liability.
"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 Corporation or any Subsidiary primarily for manufacturing,
assembling, processing, producing, packaging or storing its products, raw
materials, inventories or other materials and supplies and 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 Resolution of the Corporation not to be of material
importance to the respective businesses conducted by the Corporation and its
Subsidiaries taken as a whole, effective as of the date such resolution is
adopted.
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"Subsidiary" means a corporation a majority of the voting stock of which is
owned by the Corporation, the Corporation and one or more Subsidiaries, or one
or more Subsidiaries.
Limitations on Sale-Leaseback Transactions. Unless otherwise specified in
the Prospectus Supplement in respect of which this Prospectus is being
delivered, and subject to the following sentence as well as to the exceptions
set forth below under the caption "Exempted Debt," the Corporation will not,
and will not permit any Subsidiary to, sell or transfer, directly or
indirectly, except to the Corporation 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. Notwithstanding the foregoing, the
Corporation or any Subsidiary may sell a Principal Property and lease it back
for a longer period (i) if the Corporation or such Subsidiary would be
entitled, pursuant to the provisions set forth above under the caption
"Limitations on Liens," to create a mortgage on the property to be leased
securing Debt in an amount equal to the Attributable Debt (as hereinafter
defined) in respect of the sale-leaseback transaction without equally and
ratably securing the outstanding Debt Securities or (ii) if the Corporation
promptly informs the Trustee of such transaction, the net proceeds of such
transaction are at least equal to the fair value (as determined by a Board
Resolution) of such property, and the Corporation causes an amount equal to the
net proceeds of the sale to be applied to the retirement of Funded Debt
(including the Debt Securities) and having an outstanding principal amount
equal to the net proceeds.
"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.
Exempted Debt. Notwithstanding the restrictions set forth above under the
captions "Limitations on Liens" and "Limitations on Sale-Leaseback
Transactions," the Corporation or any Subsidiary may create or assume liens and
renew, extend or replace such liens and may enter into sale and leaseback
transactions, in each case in addition to those permitted under the captions
"Limitations on Liens" and "Limitations on Sale-Leaseback Transactions,"
provided that at the time of the creation, assumption, renewal, extension or
replacement of such liens or the entering into of such sale-leaseback
transactions, and after giving effect thereto, Exempted Debt does not exceed
10% of Consolidated Net Tangible Assets.
"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 same property.
"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 the Indenture and secured by liens created or assumed or
permitted to exist pursuant to the exception to the limitations set forth above
under the caption "Exempted Debt," and (ii) Attributable Debt of the
Corporation and its Subsidiaries in respect of all sale-leaseback transactions
with regard to any Principal Property entered into pursuant to the exception to
the sale-leaseback limitations set forth above under the caption "Exempted
Debt."
Consolidation, Merger, Sale of Assets. The Corporation may not consolidate
with or merge into, or transfer, directly or indirectly, all or substantially
all of its assets to, another corporation or other entity unless (1) the
resulting, surviving or transferee corporation or other entity assumes by
supplemental indenture all of the obligations of the Corporation under the Debt
Securities and the Indenture, (2) immediately after giving effect to the
transaction no Event of Default, and no event that, after notice or lapse of
time or both, would become an Event of Default, shall have happened and be
continuing, and (3) the Corporation shall have delivered an officers'
certificate and an opinion of counsel each stating that the consolidation,
merger or transfer and the supplemental indenture comply with the terms of the
Indenture.
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When a successor corporation or other entity, trustee, paying agent or
registrar assumes all of the obligations of its predecessor under the Debt
Securities and the Indenture, the predecessor will be released from those
obligations.
DEFAULT AND REMEDIES
An Event of Default under the Indenture in respect of any series of Debt
Securities includes: default for 30 days in payment of interest on the Debt
Securities or a related coupon, if any, of that series; default in payment of
principal on the Debt Securities of that series; failure by the Corporation for
30 days after notice to it to comply with any of its other agreements in the
Indenture for the benefit of holders of Debt Securities of that series; failure
by the Corporation or any Subsidiary to pay when due principal of or interest
on any Debt (other than the Debt Securities) having a then-outstanding
principal amount in excess of $20,000,000 or the maturity of any such Debt
shall have been accelerated; certain events of bankruptcy or insolvency; and
any other Event of Default specifically provided for by the terms of such
series, as described in the related Prospectus Supplement. If an Event of
Default occurs and is continuing, the Trustee or the holders of at least 25% in
principal amount of the outstanding Debt Securities of the affected series may
declare the Debt Securities of that series to be due and payable immediately,
but under certain conditions such acceleration may be rescinded by the holders
of a majority in principal amount of the outstanding Debt Securities of the
affected series.
Securityholders may not enforce the Indenture or the Debt Securities except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture
or the Debt Securities unless it receives indemnity satisfactory to it. Subject
to certain limitations, holders of a majority in principal amount of the Debt
Securities of any series may direct the Trustee in its exercise of any trust or
power under the Indenture in respect of that series. The Indenture provides
that the Trustee will, within 90 days after the occurrence of any default with
respect to the Debt Securities of any particular series, give to the holders of
such Debt Securities notice of the default if known to it, unless the default
shall have been cured or waived. The Trustee may withhold from Securityholders
notice of any continuing default (except a default in payment of principal of
(or premium, if any) or interest, if any) if it determines that withholding
such notice does not adversely affect the interests of such Holders.
If, for the purpose of obtaining a judgment in any court with respect to any
obligation of the Corporation under the Indenture, any Debt Security, or any
related coupon, as the case may be, it becomes necessary to convert into any
other currency or currency unit any amount in the currency or currency unit due
under the Indenture, such Debt Security or coupon, as the case may be, the
conversion will be made by the Currency Determination Agent appointed pursuant
to the Indenture with respect to such Debt Security at the Market Exchange Rate
in effect on the date of entry of the judgment (the "Judgment Date"). If
pursuant to any such judgment, conversion is made on a date (the "Substitute
Date") other than the Judgment Date and a change has occurred between the
Market Exchange Rate in effect on the Judgment Date and the Market Exchange
Rate in effect on the Substitute Date, the Indenture requires the Corporation
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 in effect on the Judgment
Date, is the amount then due under the Indenture, such Debt Security or coupon,
as the case may be. The Corporation will not, however, be required to pay more
in the currency or currency unit due under the Indenture, such Debt Security or
coupon, as the case may be, at the Market Exchange Rate in effect on the
Judgment Date than the amount of currency or currency unit stated to be due
under the Indenture, such Debt Security or coupon, as the case may be, and the
Corporation will be entitled to withhold (or be reimbursed for, as the case may
be), any excess of the amount actually realized upon any such conversion at the
Substitute Date over the amount due and payable on the Judgment Date.
A director, officer, employee or stockholder, as such, of the Corporation
shall not have any liability for any obligations of the Corporation under the
Debt Securities or the Indenture or for any claim based on, in respect of, or
by reason of such obligations or their creation. By accepting a Debt Security,
each
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Securityholder waives and releases all such claims and liability. This waiver
and release are part of the consideration for the issue of the Debt Securities.
DEFEASANCE
The Indenture provides, unless such provision is made inapplicable to the
Debt Securities of any series issued pursuant to the Indenture, that the
Corporation may, subject to certain conditions described below, discharge its
indebtedness and its obligations or certain of its obligations under the
Indenture in respect of Debt Securities of a series by depositing funds or
Government Obligations with the Trustee. The Indenture provides that (1) the
Corporation will be discharged from any obligation to comply with certain
restrictive covenants of the Indenture and certain other obligations under the
Indenture and any noncompliance with such obligations shall not be an Event of
Default in respect of the series of Debt Securities or (2) provided that 91
days have passed from the date of the deposit referred to below and certain
specified Events of Default have not occurred, the Corporation will be
discharged from any and all obligations in respect of the series of Debt
Securities (except for certain obligations, including obligations to register
the transfer and exchange of the Debt Securities of such series, to replace
mutilated, lost or stolen Debt Securities of such series, to maintain paying
agencies and to cause money to be held in trust), in either case upon the
deposit with the Trustee, in trust, of money and/or Government Obligations
that, through the payment of interest and principal in accordance with their
terms, will provide money in an amount sufficient to pay the principal of (and
premium, if any) and each installment of interest, if any, on the series of
Debt Securities on the date when such payments become due in accordance with
the terms of the Indenture and the series of Debt Securities. Such a trust may
(except to the extent the terms of the Debt Securities of such series provide
otherwise) only be established, if among other things, (a) the deposit of money
and/or Government Obligations will not result in a breach or violation of, or
constitute a default under, the Indenture or any other agreement or instrument
to which the Corporation is a party or by which it is bound, (b) the
Corporation shall have delivered to the Trustee an opinion of counsel to the
effect that the holders of Debt Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of such
deposit, defeasance or 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 or discharge had not occurred and (c) if
the Debt Securities are then listed on any securities exchange, the Corporation
shall have delivered to the Trustee an opinion of counsel to the effect that
such deposit, defeasance or discharge will not cause the Debt Securities to be
delisted. In the event of any such defeasance under clause (1) above, the
obligations of the Corporation under the Indenture and the Debt Securities of
the affected series, other than with respect to the covenants relating to
limitations on liens and sale-leaseback transactions and the delivery of
compliance certificates, shall remain in full force and effect. In the event of
defeasance and discharge under clause (2) above, the holders of Debt Securities
of the affected series are entitled to look only to the trust fund created by
such deposit for payment.
Pursuant to the escrow or trust agreements that the Corporation may execute
in connection with the defeasance of all or certain of its obligations under
the Indenture as provided above, the Corporation from time to time may elect to
substitute Government Obligations for any or all of the Government Obligations
deposited with the Trustee; provided that the money and/or Government
Obligations in trust following such substitution or substitutions will be
sufficient, through the payment of interest, if any, and principal in
accordance with their terms, to pay the principal of (and premium, if any) and
each installment of interest on the series of Debt Securities on the date when
such payments become due in accordance with the terms of the Indenture and the
series of Debt Securities. The escrow or trust agreements also may enable the
Corporation (1) to direct the Trustee to invest any money received by the
Trustee on the Government Obligations comprising the trust in additional
Government Obligations, and (2) to withdraw monies or Government Obligations
from the trust from time to time; provided that the money and/or Government
Obligations in trust following such withdrawal will be sufficient, through the
payment of interest, if any, and principal in accordance with their terms, to
pay the principal of (and premium, if any) and each installment of interest on
the series of Debt Securities on the date when such payments become due in
accordance with the terms of the Indenture and the series of Debt Securities.
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NOTICES
Except as may otherwise be set forth in the Prospectus Supplement relating to
a series of Debt Securities, notices to Holders of Bearer Securities will be
given by publication in a daily newspaper in the English language of general
circulation in the City of New York and in London, and so long as such Bearer
Securities are listed on the Luxembourg Stock Exchange and the Luxembourg Stock
Exchange shall so require in a daily newspaper of general circulation in
Luxembourg or, if not practical, elsewhere in Western Europe. Such publication
is expected to be made in The Wall Street Journal, the Financial Times and the
Luxemburger Wort. Notices to Holders of Registered Securities will be given by
mail to the addresses of such Holders as they appear in the Security Register.
TITLE
Title to any temporary Global Security, any permanent Global Security, and
Bearer Securities and any coupons appertaining thereto will pass by delivery.
The Corporation, the Trustee and any agent of the Corporation or the Trustee
may treat the bearer of any Bearer Security and the bearer of any coupon and
the registered owner of any Registered Security as the absolute owner thereof
(whether or not such Debt Security or coupon shall be overdue and
notwithstanding any notice to the contrary) for the purpose of making payment
and for all other purposes.
GOVERNING LAW
The Debt Securities and the Indenture will be governed by the laws of the
State of New York.
TRUSTEE
An affiliate of Marine Midland Bank participates in the Corporation's
revolving credit facility and from time to time performs other services for the
Corporation in the normal course of business.
ADDITIONAL INFORMATION
The Indenture is an exhibit to the Registration Statement of which this
Prospectus is a part. Any person who receives this Prospectus may obtain a copy
of the Indenture without charge by writing to the Corporation at the address
listed under the caption "Incorporation of Certain Information by Reference."
LIMITATIONS ON ISSUANCE OF BEARER SECURITIES
In compliance with United States federal tax laws and regulations, Bearer
Securities may not be offered or sold during the restricted period (as defined
in Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury regulations) or
delivered in connection with their sale during the restricted period in the
United States or its possessions or to United States persons (each as defined
below) except to the extent permitted under Section 1.163-5(c)(2)(i)(D) of the
United States Treasury regulations (the "D Rules"), and any underwriters,
agents and dealers participating in the offering of Debt Securities must agree
that they will not offer for sale or resale, or sell, Bearer Securities in the
United States or its possessions or to United States persons, except to the
extent permitted under the D Rules, nor deliver Bearer Securities within the
United States.
Bearer Securities and any coupons appertaining thereto will bear a legend
substantially to the following effect: "Any United States person who holds this
obligation will be subject to limitations under the United States income tax
laws, including the limitations provided in Sections 165(j) and 1287(a) of the
Internal Revenue Code." Under Sections 165(j) and 1287(a) of the Code and the
regulations thereunder, Holders of Bearer Securities that are United States
persons, with certain exceptions, will not be allowed to deduct any loss
sustained on the sale, exchange, redemption or other disposition of Bearer
Securities and will be taxed at ordinary income rates on any gain (which might
otherwise be characterized as capital gain) recognized on such sale, exchange
or disposition. In addition, interest on Bearer Securities will be payable only
outside the United States.
15
<PAGE>
As used herein, "United States" means the United States of America (including
the States and the District of Columbia), and its "possessions," including
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands, and "United States person" means an individual who is
a citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States or any
political subdivision thereof, or any estate or trust the income of which is
subject to United States Federal income taxation regardless of its source.
PLAN OF DISTRIBUTION
The Corporation may sell Debt Securities to or through underwriters or to
dealers, acting as principals for their own account and also may sell Debt
Securities directly to other purchasers or through agents. The Prospectus
Supplement in respect of which this Prospectus is being delivered sets forth
the terms of the offering of the Offered Debt Securities and includes, without
limitation, (i) the name or names of any underwriters, dealers or agents with
which the Corporation has entered into arrangements with respect to the sale of
the Offered Debt Securities, (ii) the initial public offering or purchase price
of the Offered Debt Securities, (iii) the principal amounts of the Offered Debt
Securities to be purchased by any such underwriters, dealers or agents, (iv)
any underwriting discounts, commissions and other items constituting
underwriters' compensation and any other discounts, concessions or commissions
allowed or reallowed or paid by any underwriters or other dealers, (v) any
commissions paid to any agents, (vi) the net proceeds to the Corporation and
(vii) the securities exchanges, if any, on which the Offered Debt Securities
will be listed.
If underwriters are used in the offering of Debt Securities, the Debt
Securities being sold will be acquired by the underwriters for their own
account and may be resold from time to time in one or more transactions,
including negotiated transactions, at a fixed public offering price or at
varying prices determined at the time of such resale. Unless otherwise set
forth in an applicable Prospectus Supplement, the obligations of the
underwriters to purchase such Debt Securities will be subject to certain
conditions precedent and each of the underwriters with respect to such Debt
Securities will be obligated to purchase all of the Debt Securities allocated
to it if any such Debt Securities are purchased. Any initial public offering
price and any discounts or concessions allowed or reallowed or paid to dealers
may be changed from time to time.
If dealers are utilized in the sale of the Debt Securities in respect of
which this Prospectus is being delivered, the Corporation will sell such Debt
Securities to such dealers as principals. The dealers may then resell such Debt
Securities to the public at varying prices to be determined by such dealers at
the time of resale.
Offers to purchase Debt Securities may be solicited by agents designated by
the Corporation from time to time. Any such agent, who may be deemed to be an
underwriter as that term is defined in the Securities Act, involved in the
offer or sale of the Debt Securities in respect of which this Prospectus is
being delivered will be named, and any commissions payable by the Corporation
to such agent will be set forth, in the Prospectus Supplement. Unless otherwise
indicated in the Prospectus Supplement in respect of which this Prospectus is
being delivered, any such agent will be acting on a reasonable or best efforts
basis for the period of its appointment.
Offers to purchase Debt Securities may be solicited, and sales thereof may be
made directly by the Corporation to institutional investors or otherwise, who
may be deemed to be underwriters within the meaning of the Securities Act with
respect to any resales thereof.
Underwriters, dealers and agents participating in the distribution of Debt
Securities may be deemed to be "underwriters," as that term is defined under
the Securities Act, and any discounts and commissions received by them and any
profit realized by them on the resale thereof may be deemed to be underwriting
discounts and commissions, under the Securities Act.
16
<PAGE>
Under agreements that may be entered into by the Corporation, underwriters,
dealers and agents who participate in the distribution of Debt Securities may
be entitled to indemnification by the Corporation against certain liabilities,
including certain liabilities under the Securities Act.
If indicated in the Prospectus Supplement, the Corporation may authorize
underwriters or other persons acting as the Corporation's agents to solicit
offers by certain institutions to purchase Offered Debt Securities from the
Corporation pursuant to contracts providing for payment and delivery on a
future date. Institutions with which such contracts may be made include
commercial and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions and others, but in all cases
such institutions must be approved by the Corporation. The obligations of any
purchaser under any such contract will be subject to the condition that the
purchase of the Offered Debt Securities shall not at the time of delivery be
prohibited under the laws of the jurisdiction to which such purchaser is
subject. The underwriters and any such other agents will not have any
responsibility in respect of the validity or performance of such contracts.
VALIDITY
The validity of the Debt Securities offered hereby will be passed on for the
Corporation by Miles & Stockbridge, a Professional Corporation, Baltimore,
Maryland. If this Prospectus is being delivered in an underwritten offering of
Debt Securities, certain matters will be passed on for any underwriters by
Simpson Thacher & Bartlett (a partnership which includes professional
corporations), New York, New York. Simpson Thacher & Bartlett may rely, as to
matters of Maryland law, upon the opinion of Miles & Stockbridge, a
Professional Corporation.
EXPERTS
The consolidated financial statements of the Corporation appearing in the
Corporation's Annual Report on Form 10-K for the year ended December 31, 1993,
have been audited by Ernst & Young, independent auditors, as set forth in their
report thereon included therein and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by reference in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
17
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses (other than underwriting
discounts and commissions) expected to be incurred in connection with the
offering or offerings described in this Registration Statement. All amounts are
estimated except the Securities and Exchange Commission registration fee.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee.............. $172,414
Trustee fees and expenses........................................ 15,000
Legal fees and expenses.......................................... 200,000
Accounting fees and expenses..................................... 200,000
Printing and engraving fees and expenses......................... 60,000
Rating agency fees............................................... 170,000
Blue Sky fees and expenses (including legal fees)................ 25,000
Miscellaneous.................................................... 17,586
--------
$860,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Corporation's By-Laws provide that the Corporation may indemnify and
advance expenses to its currently acting and its former directors to the
fullest extent permitted by the Maryland General Corporation Law, and that the
Corporation may indemnify and advance expenses to its officers to the same
extent as its directors and to such further extent as is consistent with law.
The Maryland General Corporation Law provides that a corporation may indemnify
any director made a party to any proceeding by reason of service in that
capacity unless it is established that: (1) the act or omission of the director
was material to the matter giving rise to the proceeding and (a) was committed
in bad faith or (b) was the result of active and deliberate dishonesty, or (2)
the director actually received an improper personal benefit in money, property
or services, or (3) in the case of any criminal proceeding, the director had
reasonable cause to believe that the act or omission was unlawful. The statute
permits Maryland corporations to indemnify its officers, employees or agents to
the same extent as its directors and to such further extent as is consistent
with law.
The Corporation's Charter provides that, to the fullest extent limitations on
the liability of directors and officers are permitted by the Maryland General
Corporation Law, no director or officer of the Corporation shall have any
liability to the Corporation or its stockholders for monetary damages. The
Maryland General Corporation Law provides that a corporation's charter may
include a provision which restricts or limits the liability of its directors or
officers to the corporation or its stockholders for money damages except: (1)
to the extent that it is proved that the person actually received an improper
benefit or profit in money, property or services, for the amount of the benefit
or profit in money, property or services actually received, or (2) to the
extent that a judgment or other final adjudication adverse to the person is
entered in a proceeding based on a finding in the proceeding that the person's
action, or failure to act, was the result of active and deliberate dishonesty
and was material to the cause of action adjudicated in the proceeding. In
situations to which the Charter provision applies, the remedies available to
the Corporation or a stockholder are limited to equitable remedies such as
injunction or rescission. This provision would not, in the opinion of the
Commission, eliminate or limit the liability of directors and officers under
the federal securities laws.
The form of underwriting agreement filed as an exhibit to this Registration
Statement provides for indemnification by the Corporation of the underwriters
or controlling persons of the underwriters under certain circumstances.
II-1
<PAGE>
ITEM 16. EXHIBITS.
<TABLE>
<C> <S>
1 Form of Underwriting Agreement.
4 Form of Indenture.
5 Opinion of Miles & Stockbridge, a Professional Corporation.
12 Statement regarding computation of ratio of earnings to fixed charges.
23(a) Consent of Ernst & Young.
23(b) Consent of Miles & Stockbridge, a Professional Corporation (included
in Exhibit 5).
24 Powers of Attorney.
25 Form T-1, Statement of Eligibility and Qualification Under the Trust
Indenture Act of 1939.
</TABLE>
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in
II-2
<PAGE>
the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
(i) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act of 1933 shall be deemed to be part
of this registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(j) The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of section 310 of the Trust Indenture Act of 1939 in accordance
with the rules and regulations prescribed by the Commission under section
305(b)(2) of the Trust Indenture Act of 1939.
II-3
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF TOWSON, STATE OF MARYLAND, THE 25TH DAY OF MAY 1994.
THE BLACK & DECKER CORPORATION
/S/ CHARLES E. FENTON
By: _________________________________
Charles E. Fenton
Vice President and General Counsel
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
SIGNATURES TITLE DATE
---------- ----- ----
* Chairman, President May 25, 1994
_____________________________________ and Chief Executive
NOLAN D. ARCHIBALD Officer (Principal
Executive Officer)
* Vice President-- May 25, 1994
_____________________________________ Finance (Principal
THOMAS M. SCHOEWE Financial Officer)
* Corporate Controller May 25, 1994
_____________________________________ (Principal
STEPHEN F. REEVES Accounting Officer)
The registration statement also has been signed on the date indicated by the
following directors, who constitute a majority of the Board of Directors:
Nolan D. Archibald* J. Dean Muncaster*
Barbara L. Bowles* Lawrence R. Pugh*
Malcolm Candlish* Mark H. Willes*
Alonzo G. Decker, Jr.* M. Cabell Woodward, Jr.*
Anthony Luiso*
/S/ CHARLES E. FENTON May 25, 1994
*By: ________________________________
Charles E. Fenton
(As Attorney-in-fact)
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION PAGE
----------- ----------- ----
<C> <S> <C>
1 Form of Underwriting Agreement.
4 Form of Indenture.
5 Opinion of Miles & Stockbridge, a Professional Corporation.
12 Statement regarding computation of ratio of earnings to
fixed charges.
23(a) Consent of Ernst & Young.
23(b) Consent of Miles & Stockbridge, a Professional Corporation
(included in Exhibit 5).
24 Powers of Attorney.
25 Form T-1, Statement of Eligibility and Qualification Under
the Trust Indenture Act of 1939 (filed under separate
cover).
</TABLE>
II-5
<PAGE>
THE BLACK & DECKER CORPORATION
Debt Securities
UNDERWRITING AGREEMENT - BASIC PROVISIONS
-----------------------------------------
as of ________ __, 1994
Dear Sirs:
The Black & Decker Corporation, a Maryland corporation (the
"Corporation"), proposes from time to time to enter into one or more Pricing
Agreements in the form of Annex I hereto, with such additions and deletions as
the parties thereto may determine (each a "Pricing Agreement"), and, subject to
the terms and conditions stated herein and therein, to issue and sell to the
firm or firms named in Schedule I to the applicable Pricing Agreement (such firm
or firms constituting the "Underwriters" with respect to such Pricing Agreement
and the securities specified therein) certain of its debt securities (the
"Securities") specified in Schedule II to such Pricing Agreement (such
Securities, as so specified in such Pricing Agreement, being herein sometimes
referred to as the "Designated Securities"). This Agreement, the applicable
Pricing Agreement, the Securities and the Indenture are hereinafter referred to
collectively as the "Operative Documents".
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the indenture dated as of ________ __, 1994 (such indenture,
together with any indentures supplemental thereto, being herein referred to as
the "Indenture") between the Corporation and Marine Midland Bank, a banking
corporation and trust company organized under the laws of the State of New York,
as Trustee (the "Trustee").
For purposes of this Agreement, the terms "Act," "the Trust Indenture
Act," "the 1933 Act Regulations," and "the Trust Indenture Act Regulations"
shall mean the Securities Act of 1933, as amended, the Trust Indenture Act of
1939, as amended, respectively, and the rules and regulations promulgated by the
Securities and Exchange Commission (the "Commission") under the Act and the
Trust Indenture Act, respectively.
1. Obligations of Corporation and Underwriters. Particular sales of
Designated Securities may be made from time to time to the Underwriters of such
Securities, for whom the firms designated as
<PAGE>
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters, to a single firm acting as an Underwriter and to Underwriters
that act without any firm being designated as their representative. This
Agreement, absent the execution and delivery of a Pricing Agreement in respect
of Designated Securities, shall not be construed as an obligation of the
Corporation to sell any of the Securities or as an obligation of any of the
Underwriters to purchase the Securities. The obligation of the Corporation to
issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the Pricing
Agreement with respect to the Designated Securities specified therein. Each
Pricing Agreement shall state the aggregate principal amount of such Designated
Securities, the initial public offering price of such Designated Securities, the
purchase price to the Underwriters of such Designated Securities, the name or
names of the Underwriters of such Designated Securities, the principal amount of
such Designated Securities to be purchased by each Underwriter, and shall set
forth the date, time and manner of delivery of such Designated Securities and
payment therefor. The Pricing Agreement shall also specify (to the extent not
set forth in the registration statement and the prospectus with respect thereto
and in the Indenture) the terms of such Designated Securities. A Pricing
Agreement shall be in the form of an executed writing (which may be in
counterparts), and may be evidenced by an exchange of facsimile transmissions.
Each Pricing Agreement shall be deemed to be an agreement by the Corporation and
the Underwriters to be bound, except as otherwise expressly stated in such
Pricing Agreement, by the terms of this Agreement. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. Representations, Warranties and Agreements of the Corporation.
The Corporation represents, warrants and agrees at and as of the date hereof, as
of the date of the applicable Pricing Agreement and as of the Time of Delivery
(as hereinafter defined) (in each case, the "Representation Date") that:
(a) The Corporation meets the requirements for use of Form S-3 under
the Act. The Corporation has prepared and filed with the Commission a
registration statement on Form S-3 (File No. 33-_____) relating to the
Securities 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 5, a prospectus supplement reflecting the terms
of the Designated Securities, the terms
- 2 -
<PAGE>
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
Securities, 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, in the form first filed pursuant to Rule
424, is herein referred to as the "Prospectus Supplement", and any such
preliminary prospectus supplement in the form filed pursuant to Rule 424 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 2(a), as amended at the time of execution
of the applicable Pricing Agreement, 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 under the Registration Statement,
as supplemented by the Prospectus Supplement, is herein called the
"Prospectus", except that, if such basic prospectus is amended or
supplemented on or prior to the date on which the Prospectus Supplement is
first filed pursuant to Rule 424, the term "Prospectus" shall refer to the
basic prospectus as so amended or supplemented and as supplemented by the
Prospectus Supplement in the form first filed, in each case including the
documents filed by the Corporation 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.
(b) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective and as of the applicable
Representation Date, complied and will comply in all material respects with
the applicable requirements of the Act and the 1933 Act Regulations
(including with respect to the offering of the Securities under Rule 415 of
such regulations). The Registration Statement, at the time the
Registration Statement became effective (or, if an amendment to the
Registration Statement or an annual report on Form 10-K has been filed by
the Corporation with the Commission subsequent to the effectiveness of the
Registration Statement, then at the time of the most recent such filing)
did not contain any untrue statement of a material fact or omit to
- 3 -
<PAGE>
state any material fact required to be stated therein or necessary to make
the statements therein not misleading. The Prospectus, at the time the
Registration Statement became effective and as of the applicable
Representation Date, did not and will not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the representations and
-------- -------
warranties in this subsection shall not apply to statements in or omissions
from the Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Corporation in writing by any
of the Underwriters expressly for use in the Registration Statement or
Prospectus relating to such Designated Securities 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, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with the
applicable requirements of the Exchange Act, and the applicable rules and
regulations of the Commission thereunder and, when read together with the
other information in the Prospectus, at the time the Registration Statement
and any amendments thereto became or become effective and at each
Representation Date, did not and will not contain an untrue statement of a
material fact and will not 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
Trust Indenture Act Regulations.
(e) The Corporation has all requisite corporate power and authority
to execute and deliver this Agreement and each Pricing Agreement. This
Agreement and the applicable Pricing Agreement have been duly authorized,
executed and delivered by the Corporation.
(f) The Corporation has all of the requisite corporate power and
authority to execute, issue and deliver the Designated Securities and to
incur and perform its obligations provided for therein; from the time a
Pricing Agreement is executed and delivered by the Corporation in respect
of
- 4 -
<PAGE>
Designated Securities, such Designated Securities will have been duly
authorized by the Corporation and, when such Designated Securities are
authenticated in the manner provided for in the Indenture and delivered
against payment therefor as provided for in this Agreement and the
applicable Pricing Agreement, such Designated Securities 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 Corporation entitled to the benefits of the Indenture
and enforceable against the Corporation 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 Securities conform in all material respects to
the description thereof contained in the Prospectus.
(g) The Corporation 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 Corporation, will be substantially in the
form heretofore delivered to the Underwriters and assuming due execution
and delivery by the Trustee, will constitute a legal, valid and binding
obligation of the Corporation, enforceable against the Corporation 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 Corporation and each of its subsidiaries (as defined in
Section 15) 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 Corporation and its 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.
- 5 -
<PAGE>
(i) The Corporation has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Corporation have been duly and validly authorized and issued, are full
paid and non-assessable; and all of the issued shares of capital stock of
each subsidiary of the Corporation 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 Corporation, 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 Corporation and its subsidiaries taken as a whole).
(j) The issuance, sale and delivery of the Designated Securities, the
execution, delivery and performance of the other Operative Documents, the
compliance by the Corporation with the terms therein and the consummation
by the Corporation 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 Corporation or any
of its subsidiaries is a party or by which the Corporation or any of its
subsidiaries is bound or to which any of the property or assets of the
Corporation or any of its subsidiaries is subject, (ii) result in any
violation of the provisions of the charter or by-laws of the Corporation or
(except for any violation the result of which would not be material to the
Corporation and its subsidiaries taken as a whole and would not adversely
affect the consummation of the transactions contemplated hereby and
thereby) any of its 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 Corporation or any of its
subsidiaries or any of their properties the result of which violation would
be material to the Corporation and its 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 Time of Delivery,
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
Securities or the authorization, execution, delivery and performance of
this Agreement and the applicable Pricing Agreement by the Corporation and
the consummation of the transactions contemplated hereby and
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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 Corporation and any
person granting such person the right to require the Corporation to file a
registration statement under the Act with respect to any securities of the
Corporation owned or to be owned by such person or to require the
Corporation 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
Corporation under the Act.
(l) Neither the Corporation nor any of its subsidiaries 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 Corporation and its 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 long-term
debt of the Corporation or any of its 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 Corporation
and its subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus.
(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 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
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, who have certified certain financial statements of
the Corporation 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
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accountants as required by the Act and the 1933 Act Regulations.
(o) The Corporation and each of its 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 Corporation and its 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 Corporation
and its subsidiaries taken as a whole.
(p) Except as described in the Prospectus, there are no legal or
governmental proceedings pending to which the Corporation or any of its
subsidiaries is a party or of which any property of the Corporation 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
Corporation and its subsidiaries taken as a whole; and to the best of the
Corporation'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 filed as exhibits to the Registration
Statement or incorporated therein by reference as permitted by the 1933 Act
Regulations.
(r) Neither the Corporation nor any of its 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
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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 Corporation
and its subsidiaries taken as a whole.
3. Offer and Sale of the Securities. Upon the execution of the Pricing
Agreement applicable to any Designated Securities and authorization by the
Representatives of the release of the Designated Securities, the several
Underwriters propose to offer the Designated Securities for sale upon the terms
and conditions set forth in the Prospectus.
4. Delivery of and Payment for the Designated Securities. Delivery of
and payment for the Designated Securities shall be made on the fifth Business
Day (subject to Section 9 below) following the date of the Pricing Agreement
relating thereto at the place and time specified in such Pricing Agreement or at
such other date or place as shall be determined by agreement between the
Representatives and the Corporation. This date and time are sometimes referred
to as a "Time of Delivery." At each Time of Delivery, the Corporation shall
deliver or cause to be delivered certificates representing the Designated
Securities to the Representatives for the account of each Underwriter against
payment to or upon the order of the Corporation of the purchase price by
certified or official bank check or checks payable in New York Clearing House
(next-day) funds. Time shall be of the essence, and delivery at the time and
place specified pursuant to any Pricing Agreement is a further condition of the
obligation of each Underwriter under such Pricing Agreement. Upon delivery, the
Designated Securities shall be in such denominations and, in the case of
Designated Securities in registered form, shall be registered in such names as
the Representatives shall request in writing not less than two full Business
Days prior to the applicable Time of Delivery. For the purpose of expediting
the checking and packaging of the Designated Securities, the Corporation shall
make the Designated Securities available for inspection by the Representatives
in New York, New York, not later than 2:00 P.M., New York City time, on the
Business Day prior to the applicable Time of Delivery.
5. Further Agreements of the Corporation. The Corporation hereby
covenants and agrees with each of the Underwriters of any Designated Securities:
(a) Immediately following the execution of each Pricing Agreement,
the Corporation will prepare in a form approved by the Representatives a
Prospectus Supplement setting forth the principal amount of Designated
Securities covered thereby and
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their terms not otherwise specified in the Indenture, the names of the
Underwriters and the principal amount of Designated Securities which each
of them severally has agreed to purchase, the price at which the Securities
are to be purchased by the Underwriters from the Corporation, the initial
public offering price, the selling concession and reallowance, if any, and
such other information as the Representatives and the Corporation deem
appropriate in connection with the offering of the Securities. The
Corporation will promptly transmit copies of the Prospectus Supplement to
the Commission for filing pursuant to Rule 424 under the Act and will
furnish to each of the Underwriters as many copies of the Prospectus and
such Prospectus Supplement as the Representatives shall reasonably request.
The Corporation will make no further amendment or supplement to the
Registration Statement or the Prospectus except as permitted herein.
(b) If, during such period after the first date of the public
offering of the Designated Securities as in the opinion of the
Underwriters' counsel the Prospectus is required to be delivered under the
Act in connection with sales by any Underwriter or any dealer, any event
occurs as a result of which the Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if for any
other reason it shall be necessary to amend or supplement the Prospectus or
to file under the Exchange Act any document incorporated by reference in
the Prospectus to comply with the Act, the Exchange Act, the Trust
Indenture Act or the rules and regulations promulgated by the Commission
under such acts, the Corporation will notify the Representatives and, upon
their request, file with the Commission an amendment, supplement or
document which will correct such untrue statement or omission or which will
effect such compliance.
(c) From the date of a Pricing Agreement, and (i) other than with
respect to the filing of documents to be incorporated by reference into the
Registration Statement or the Prospectus, for so long as a Prospectus is
required to be delivered in connection with the sale of Designated
Securities covered by such Pricing Agreement and (ii) with respect to the
filing of documents to be incorporated by reference into the Registration
Statement or the Prospectus, through the date of the Time of Delivery of
the Designated Securities covered by such Pricing Agreement, the
Corporation will, prior to filing with the Commission any Preliminary
Prospectus, any amendment to the Registration Statement or any amendment or
supplement to the Prospectus, any document to be incorporated by reference
into the Registration Statement or the Prospectus or any Prospectus
Supplement pursuant to Rule 424 under the Act, furnish the Representatives
and Underwriters' counsel with
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copies of any such amendment or supplement or other documents proposed to
be filed a reasonable time in advance of filing and will obtain the consent
of the Representatives to the filing (which shall not be unreasonably
withheld). Subject to the consent requirements of the preceding sentence,
the Corporation will file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Corporation or in the opinion
of Underwriters' counsel, be required by the Act or requested by the
Commission.
(d) From the date of a Pricing Agreement, and for so long as a
Prospectus is required to be delivered in connection with the sale of
Designated Securities covered by such Pricing Agreement, the Corporation
will notify the Underwriters immediately, and confirm the notice in
writing, 1. of the effectiveness of any amendment to the Registration
Statement, (ii) of the mailing or the delivery to the Commission for filing
of any supplement to the Prospectus or any document to be filed pursuant to
the Exchange Act which will be incorporated by reference into the
Registration Statement or Prospectus, (iii) of the receipt of any written
comments from the Commission with respect to the Registration Statement,
the Prospectus or any Prospectus Supplement, (iv) of any request by the
Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for additional information, and (v) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose. The Corporation will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(e) From the date of any Pricing Agreement through the date of the
Time of Delivery with respect to the Designated Securities covered thereby,
the Corporation will not, without the prior written consent of the
Representatives with respect to the Designated Securities covered thereby,
offer for sale, sell or otherwise dispose of, directly or indirectly, any
debt securities of the Corporation similar to the Designated Securities
that are the subject of the Pricing Agreement, or agree to do any of the
foregoing.
(f) The Corporation will deliver promptly to the Representatives such
number of the following documents as the Representatives shall reasonably
request: (i) conformed copies of the Registration Statement as originally
filed with the Commission and each amendment thereto (in each case
excluding exhibits other than this Agreement, the Indenture, any forms of
notes and the computation of per share earnings), (ii) each Preliminary
Prospectus, the Prospectus and any amended or supplemented Prospectus and
(iii) any document incorporated by reference in the Prospectus (excluding
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exhibits thereto); and the Corporation hereby consents to the use of such
documents for the purposes permitted by the Act. The Corporation will
deliver to each Underwriter, without charge, from time to time as requested
during the period when the Prospectus is required to be delivered under the
Act, such number of copies of the Prospectus as such Underwriter may
reasonably request; and in case any Underwriter is required to deliver a
prospectus in connection with sales of any of the Designated Securities at
any time nine months or more after the date on which the offering of such
Designated Securities commenced, upon such Underwriter's request, but at
the expense of such Underwriter, the Corporation will prepare and deliver
to such Underwriter as many copies as it may request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Act.
(g) The Corporation will endeavor in good faith to qualify the
Securities for offer and sale under the securities or blue sky laws of such
jurisdictions located within the United States as the Representatives may
reasonably request and under the laws of any other country specified in the
applicable Pricing Agreement and to maintain all such qualifications in
effect for as long as may be required for the distribution of Securities;
provided, however, that the Corporation shall not be obligated to file any
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general consent to service of process or to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified. The
Corporation will file such statements and reports as may be required by the
laws of each jurisdiction in which Securities have been qualified as above
provided.
(h) With respect to each sale of Designated Securities, the
Corporation will make generally available to its security holders and
deliver to the Representatives as soon as practicable an earnings statement
of the Corporation and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Act and the regulations thereunder
(including, at the option of the Corporation, Rule 158).
(i) The Corporation will use the proceeds received from the sale of
the Designated Securities in the manner specified in the Prospectus.
(j) The Corporation, during the period when the Prospectus is
required to be delivered under the Act, will file promptly all documents
required to be filed with the Commission pursuant to Section 13 or 14 of
the Exchange Act within the time periods required under the Exchange Act
(and, other than as set forth in Section 5(c) hereof, the consent of any
Underwriter shall not be required in connection with any such filing).
(k) During a period of five years from the date of the Pricing
Agreement applicable to such Designated Securities,
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the Corporation will furnish to the Representatives copies of all reports
or other communications (financial or other) furnished to security holders,
and deliver to the Representatives, during such same period, as soon as
they are available, copies of any reports and financial statements
furnished to or filed with the Commission or the principal national
securities exchange on which any of the Securities or any class of
securities of the Corporation is listed.
(l) If Designated Securities are to be listed on a securities
exchange, the Corporation will use its best efforts to cause such
Designated Securities to be so listed, subject only to official notice of
issuance.
6. Expenses. Whether or not the transactions contemplated in this
Agreement and the related Pricing Agreement are consummated or this Agreement
and the related Pricing Agreement are terminated, the Corporation agrees to pay
(a) the costs incident to the authorization, issuance, sale and delivery of the
Securities and any taxes payable in that connection; (b) the costs incident to
the preparation, printing and filing (including, without limitation, the filing
fees of the Commission) of the Registration Statement and any amendments and
exhibits thereto, any Preliminary Prospectus, the Prospectus and any amendments
or supplements thereto and the Indenture and any amendments, supplements or
exhibits thereto (including, without limitation, fees and expenses of the
Trustee); (c) 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), any Preliminary Prospectus, the Prospectus
and any amendment or supplement to the Prospectus or any document incorporated
by reference therein, all as provided in this Agreement; (d) the costs of
printing or duplicating this Agreement and the related Pricing Agreement; (e)
the costs of distributing the terms of agreement relating to the organization of
the underwriting syndicate and the selling group to the members thereof by mail,
telex or other means of communication; (f) the filing fees incident to securing
any required review by the National Association of Securities Dealers, Inc. of
the terms of sale of the Securities; (g) any applicable listing or other fees;
(h) the fees and expenses of qualifying the Securities under the securities laws
of the several jurisdictions as provided in Section 5(g) and of preparing,
printing (or duplicating) and distributing a Blue Sky Memorandum (including
related fees and expenses of counsel to the Underwriters); (i) the cost of
printing certificates representing the Securities; (j) any fees charged by
securities rating agencies for rating the Securities, (k) the cost and charges
of The Depository Trust Company, Inc. and its nominee in connection with the
Designated Securities, including the book-entry ownership system for the
Designated Securities, to the extent that the Designated Securities are to be
delivered in book-entry form, (l) the fees and expenses of the Trustee and any
agent of the Trustee and the fees and disbursements of counsel for the Trustee
in connection with the Indenture and the Securities, (m) the cost and
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charges of any transfer agent, registrar or disbursing agent, (n) all other
costs and expenses incident to the performance of the obligations of the
Corporation under this Agreement and any Pricing Agreement and (o) to the
Representatives for the account of the Underwriters, any other amount set forth
in the Pricing Agreement as reimbursement of expenses incurred by the
Underwriters in connection with the transactions contemplated hereby and
thereby; provided that, except as provided in this Section 6 and in Section 12,
the Underwriters shall pay their own costs and expenses, including the costs and
expenses of their counsel, any transfer taxes on the Designated Securities which
they may sell and the expenses of advertising any offering of the Designated
Securities made by the Underwriters.
7. Conditions of Underwriters' Obligations. The respective obligations
of the Underwriters under each Pricing Agreement are subject to the accuracy, at
the time of the execution and delivery of such Pricing Agreement and at the
applicable Time of Delivery, of the representations and warranties of the
Corporation contained herein and in each Pricing Agreement, to the performance
at the applicable Time of Delivery by the Corporation of its obligations
hereunder and under each Pricing Agreement, and to each of the following
additional terms and conditions:
(a) At the applicable Time of Delivery, no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and any request of the Commission for
inclusion of additional information in the Registration Statement or the
Prospectus shall have been complied with. The Prospectus shall have been
timely filed with the Commission in accordance with Section 5(a) hereof.
(b) No Underwriter shall have discovered and disclosed to the
Corporation at or prior to the applicable Time of Delivery that the
Registration Statement or the Prospectus or any amendment or supplement
thereto contains an untrue statement of a fact which, in the opinion of
Simpson Thacher & Bartlett, counsel for the Underwriters, 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 made the statements
therein not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the applicable Pricing
Agreement, the Securities, the Indenture, the Registration Statement and
the Prospectus, and all other legal matters relating to this Agreement, the
applicable Pricing Agreement and the transactions contemplated hereby and
thereby shall be satisfactory in all material respects to counsel for the
Underwriters, and the Corporation shall have furnished to such counsel all
documents and
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information that they may reasonably request to enable them to pass upon
such matters.
(d) Miles & Stockbridge, a Professional Corporation shall have
furnished to the Representatives their written opinion, as counsel to the
Corporation, addressed to the Underwriters and dated as of the applicable
Time of Delivery, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Corporation and each of the subsidiaries of the
Corporation listed on Schedule 1 hereto (the "Major 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 (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 Corporation has the requisite corporate power and
authority to issue and deliver the Designated Securities. The Designated
Securities covered by the applicable Pricing Agreement are in the form
contemplated by the Indenture, have been duly authorized by the Corporation
and, assuming the Designated Securities have been authenticated in
accordance with the terms of the Indenture and delivered to and paid for by
the Underwriters in accordance with the terms of this Agreement as
supplemented by the applicable Pricing Agreement, such Designated
Securities are legal, valid and binding obligations of the Corporation,
entitled to the benefits provided by the Indenture;
(iii) The Corporation 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 Corporation and is the legal, valid and binding obligation of the
Corporation;
(iv) The Indenture has been duly qualified under the Trust
Indenture Act;
(v) The Corporation has the requisite corporate power and
authority to execute, deliver and perform its obligations under this
Agreement and the applicable Pricing Agreement. This Agreement and the
applicable Pricing Agreement have been duly authorized, executed and
delivered by the Corporation;
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(vi) The Corporation has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital stock of
the Corporation have been duly and validly authorized and issued, are
full paid and non-assessable; and all of the issued shares of capital
stock of each Major 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 Corporation, free
and clear of all liens, encumbrances, equities or claims and for such
liens, encumbrances, equities or claims as would not have a material
adverse effect on the business or financial condition of the Corporation
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 Corporation or any of its subsidiaries is a party or of which any
property of the Corporation 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 Corporation 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 order
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 and any
further amendments or supplements thereto made by the Corporation prior to
the Time of Delivery of the Designated Securities (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 and any further amendment or supplement to any such incorporated
document made by the Corporation prior to such Time of Delivery (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 in all material respects with the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder;
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(x) If any Prospectus Supplement contains statements with respect
to United States federal tax considerations for holders of Debt Securities,
such opinion shall state that such statements, 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 issuance, sale and delivery of the Designated
Securities, the execution, delivery and performance of the other Operative
Documents, the compliance by the Corporation with the terms therein and the
consummation by the Corporation 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 Corporation or any of its subsidiaries is subject the effect of
which breach or violation would be material to the Corporation 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 by-laws of the Corporation 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 Corporation or any
of its subsidiaries or any of their properties the effect of which
violation would be material to the Corporation 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 Securities 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 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 Securities or the authorization, execution, delivery and
performance of this Agreement and the applicable Pricing Agreement by the
Corporation and the consummation of the transactions contemplated hereby
and thereby or for the
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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 Corporation and any person granting such person
the right to require the Corporation to file a registration statement under
the Act with respect to any securities of the Corporation owned or to be
owned by such person or to require the Corporation 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 Corporation under the Act.
(xiv) The statements set forth in the Prospectus as amended or
supplemented under the caption "Description of Debt Securities," insofar as
they constitute summaries of documents, are accurate in all material
respects and the Indenture and the Designated Securities covered by the
applicable Pricing Agreement 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 State of Maryland. 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 Corporation 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 Exchange Act Documents (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 Exchange Act Documents (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
- 18 -
<PAGE>
which such counsel need express no view), relating to the Designated
Securities 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 were 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 Corporation's obligations
under the Indenture and the Designated Securities 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 in a proceeding in equity or at law) and by an
implied covenant of good faith and fair dealing.
(e) Counsel to the Underwriters shall have furnished to the
Representatives its written opinion, addressed to the Underwriters and
dated the Time of Delivery for such Designated Securities, as counsel for
the Underwriters, covering such matters as the Underwriters may reasonably
request.
(f) (i) At the time of execution of the Pricing Agreement for
Designated Securities, Ernst & Young shall have furnished to the
Representatives a letter dated the date of such Pricing Agreement, and (ii)
at the Time of Delivery for such Designated Securities, Ernst & Young shall
have furnished to the Representatives a letter dated such Time of Delivery,
in each case containing statements and information of the type ordinarily
included in an accountant's "comfort letter" to underwriters with respect
to financial statements and certain financial information contained in the
Registration Statement and the Prospectus, including the documents
incorporated by reference therein.
(g) The Corporation shall have furnished to the Representatives on
behalf of the Underwriters a certificate, in form satisfactory to the
Underwriters, of its Chairman of the Board, its President or a Vice
President, and its principal financial officer or Treasurer, dated the
applicable Time of Delivery, stating that:
(i) The representations, warranties and agreements of the
Corporation in Section 2 are true and correct as of such Time of
Delivery; the Corporation has complied with all of its agreements
contained herein; and the conditions set forth in Sections 7(a), (i)
and (k) shall have been fulfilled; and
- 19 -
<PAGE>
(ii) They have carefully examined the Registration Statement and
the Prospectus and in their opinion (A) as of the respective dates as
of which information is given in the Registration Statement and the
Prospectus, the Registration Statement and the Prospectus did not
include any untrue statement of a material fact and did not omit to
state a material fact required to be stated therein to make the
statements therein not misleading, and (B) since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, no event has occurred which should have been set forth in
a supplement or an amendment.
(h) If Designated Securities are to be listed on a securities
exchange, such Designated Securities shall have been duly authorized for
listing on such securities exchange on the date of the applicable Pricing
Agreement, subject only to official notice of issuance thereof and notice
of a satisfactory distribution of the Designated Securities.
(i) Except as may be specified in the Pricing Agreement, any rating
given by Standard & Poor's Corporation and any rating given by Moody's
Investors Services, Inc. for the Designated Securities shall not have been
lowered, and subsequent to the execution of the Pricing Agreement 2. no
downgrading shall have occurred in the rating accorded any of the
Corporation's debt securities (including the Securities) or preferred stock
by any "nationally recognized statistical rating organization" as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the Act
and regulations thereunder and 3. no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any of the Corporation's debt securities
(including the Securities) or preferred stock.
(j) The Indenture shall have been executed and delivered by all
parties thereto on or prior to the Time of Delivery, in substantially the
form last filed by the Corporation with the Commission, and shall be in
full force and effect at the Time of Delivery.
(k) Neither the Corporation nor any of its subsidiaries shall have
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, otherwise than as set forth
or contemplated in the Prospectus and (ii) since such date there shall not
have been any change in the capital stock or long-term debt of the
Corporation or any of its subsidiaries otherwise than in the ordinary
course of business or any change, or any development involving a
prospective
- 20 -
<PAGE>
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Corporation
and its subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is, in the judgment of the
Representatives, so material and adverse to the Corporation and its
subsidiaries taken as a whole as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Securities being
delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus.
(l) Subsequent to the execution and delivery of the applicable
Pricing Agreement, there shall not have occurred any of the following: (i)
trading in securities generally on the New York Stock Exchange, the
International Stock Exchange, the American Stock Exchange or the over-the-
counter market shall have been suspended or materially limited or minimum
prices shall have been established on one or more of such exchanges or such
market by the Commission, by such exchange or by any other regulatory body
or governmental authority having jurisdiction, (ii) a banking moratorium
shall have been declared by United States federal or New York State
authorities, (iii) the United States (or any other country specified in the
applicable Pricing Agreement) shall have become engaged in major
hostilities, there shall have been an escalation in hostilities involving
the United States (or any other country specified in the applicable Pricing
Agreement) or there shall have been a declaration of a national emergency
or war by the United States (or any other country specified in the
applicable Pricing Agreement), or (iv) there shall have occurred such a
material adverse change in general economic, political or financial
conditions, national or international securities markets or currency
exchange rates or controls as to make it, in the judgment of a majority in
interest of the several Underwriters, inadvisable or impractical to proceed
with the delivery of the Securities.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance satisfactory to counsel
for the Underwriters.
If any of the conditions specified in this Section 7 shall not have been
fulfilled when and as required by this Agreement or the applicable Pricing
Agreement to be fulfilled, the applicable Pricing Agreement may be terminated by
the Underwriters on notice to the Corporation at any time at or prior to the
applicable Time of Delivery, and such termination shall be without liability of
any party to any other party, except as provided in Section 6 and Section 12
hereof. Notwithstanding any such termination, the provisions of Sections 6, 8,
10 and 12 shall remain in effect.
- 21 -
<PAGE>
8. Indemnification and Contribution.
(a) The Corporation shall indemnify and hold harmless each
Underwriter and each Person, if any, who controls any Underwriter 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
Designated Securities), to which that Underwriter 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 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, and
shall reimburse each Underwriter and each such controlling person promptly
upon demand for any legal or other expenses reasonably incurred by that
Underwriter 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 Corporation 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 such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Corporation through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein or (b) in that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification on Form T-1 of any Trustee under the Trust Indenture Act
(except for statements or omissions made in such Statement in reliance upon
information furnished to such Trustee by or on behalf of the Corporation
for inclusion therein). Notwithstanding the foregoing, it is understood
that, as to any Preliminary Prospectus this indemnity agreement shall not
inure to the benefit of any Underwriter or person who controls that
Underwriter on account of any loss, claim, damage, liability or action
arising from the sale of Designated Securities to any person by that
Underwriter if that Underwriter failed to send or give a copy of a
Prospectus to the purchaser 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 non-
compliance by the Corporation with Section 5 hereof. For purposes of the
- 22 -
<PAGE>
second proviso to the immediately preceding sentence, the term Prospectus
shall not be deemed to include the documents incorporated therein by
reference, and no Underwriter 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 Underwriter 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 Corporation
may otherwise have to any Underwriter or to any controlling person of that
Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Corporation, each of its directors, each of its officers
who signed the Registration Statement and each person, if any, who controls
the Corporation 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
Corporation 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 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 Corporation through
the Representatives by or on behalf of that Underwriter specifically for
inclusion therein, and shall reimburse promptly upon demand the Corporation
and any such director, officer or controlling person for any legal or other
expenses reasonably incurred by the Corporation or 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 Underwriter may otherwise have to
the Corporation or any such director, officer or controlling person.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of any claim or the commencement of any action, the indemnified
party shall if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided,
however, that the failure to notify the indemnifying party
- 23 -
<PAGE>
shall not relieve it from any liability which it may have under this
Section 8 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 8. 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 its
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 8 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
Representatives shall have the right to employ counsel to represent jointly
the Representatives and those other Underwriters and their respective
controlling persons who may be subject to liability arising out of any
claim in respect of which indemnity may be sought by the Underwriters
against the Corporation under this Section 8 if, in the reasonable judgment
of the Representatives, it is advisable for the Representatives and those
Underwriters and 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 Corporation. 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 of 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) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) or 8(b) 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 Corporation on the one hand and the
Underwriters on the other from the offering of the Designated Securities or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the relative
fault of
- 24 -
<PAGE>
the Corporation on the one hand and the Underwriters on the other with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits received by the
Corporation on the one hand and the Underwriters on the other with respect
to an offering of Designated Securities shall be deemed to be in the same
proportion as the total net proceeds from such offering of Designated
Securities (before deducting expenses) received by the Corporation bear to
the total underwriting discounts and commissions received by the
Underwriters with respect to such Designated Securities, in each case as
set forth in the table 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 Corporation
or the Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Corporation and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this Section
8(d) were to be determined by pro rata allocation (even if the Underwriters
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 8(d) shall be deemed to include,
for purposes of this Section 8(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 8(d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Designated
Securities underwritten by it and distributed to the public was offered to
the public exceeds the amount of any damages which such Underwriter 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 8(d),
each person, if any, who controls an Underwriter 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 Underwriter, and each person, if any,
who controls the Corporation within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, each officer of the Corporation who
shall have signed the Registration Statement and each director of the
Corporation shall have the same rights to contribution as the Corporation,
subject in each case to clauses (i) and (ii) of the first sentence of
- 25 -
<PAGE>
this Section 8(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 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 8(d) except to the extent such party or parties has or have
been materially prejudiced by such failure, and 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 8. 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 Underwriters' obligations to contribute as provided in this
Section 8(d) are several in proportion to their respective underwriting
obligations and not joint.
9. Defaulting Underwriters. If, at any Time of Delivery, any Underwriter
defaults in the performance of its obligations under the applicable Pricing
Agreement, the remaining non-defaulting Underwriters shall be obligated to
purchase the Designated Securities which the defaulting Underwriter agreed but
failed to purchase at such Time of Delivery in the respective proportions which
their respective underwriting obligations bear to the underwriting obligations
of all non-defaulting Underwriters; provided, however, that the remaining non-
defaulting Underwriters shall not be obligated to purchase any Designated
Securities at such Time of Delivery if the aggregate principal amount of the
Designated Securities which the defaulting Underwriter or Underwriters agreed
but failed to purchase on such date exceeds 9.09% of the aggregate principal
amount of the Designated Securities to be purchased at such Time of Delivery,
and any remaining non-defaulting Underwriter shall not be obligated to purchase
more than 110% of the aggregate principal amount of the Designated Securities
which it agreed to purchase at such Time of Delivery pursuant to the terms of
the applicable Pricing Agreement. If the foregoing maximums are exceeded, the
remaining non-defaulting Underwriters, or those other underwriters satisfactory
to the Representatives who so agree, shall have the right, but shall not be
obligated, to purchase, in such proportion as may be agreed upon among them, all
the Securities to be purchased at such Time of Delivery. If the remaining
Underwriters or other underwriters satisfactory to the Representatives do not
elect to purchase the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase, the applicable Pricing Agreement
shall terminate without liability on the part of any non-defaulting Underwriter
or the Corporation, except that the Corporation will continue to be liable for
the payment of expenses to the extent set forth in Sections 6 and 12.
- 26 -
<PAGE>
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Corporation for damages caused by its default. If
other underwriters are obligated or agree to purchase the Securities of a
defaulting or withdrawing Underwriter, either the Representatives or the
Corporation may postpone the applicable Time of Delivery for up to seven full
business days in order to effect any changes that in the opinion of counsel for
the Corporation or counsel for the Underwriters may be necessary in the
Registration Statement, the Prospectus or in any other document or arrangement.
10. Survival of Representations and Agreements. All representations and
warranties, covenants and agreements of the Underwriters and the Corporation
contained in this Agreement or the applicable Pricing Agreement, including the
agreements contained in Section 6 and the indemnity and contribution agreements
contained in Section 8 shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of any Underwriter or any
controlling person thereof or by or on behalf of the Corporation, any of its
officers and directors or any controlling person thereof, and shall survive
delivery of and payment for the Designated Securities to and by the several
Underwriters. The representations contained in Section 2 and the agreements
contained in Sections 6, 8, 10 and 12 hereof shall survive the termination of
this Agreement or the applicable Pricing Agreement, including termination
pursuant to Sections 9 or 11 hereof.
11. Termination. The obligations of the Underwriters under the applicable
Pricing Agreement may be terminated by the Representatives, in their absolute
discretion, by notice given to and received by the Corporation prior to delivery
of and payment for the Designated Securities if, prior to that time, any of the
events described in Sections 7(k) or 7(l) shall have occurred.
12. Reimbursement of Underwriters' Expenses. If (a) the Corporation shall
fail to tender Designated Securities for delivery to the Underwriters for any
reason permitted under this Agreement or the applicable Pricing Agreement or (b)
the Underwriters shall decline to purchase Designated Securities for any reason
permitted under this Agreement or the applicable Pricing Agreement (including
the termination of the applicable Pricing Agreement pursuant to Section 11
hereof), the Corporation shall reimburse the Underwriters for the fees and
expenses of their counsel and for such other out-of-pocket expenses as shall
have been incurred by them in connection with this Agreement, the applicable
Pricing Agreement and the proposed purchase of such Designated Securities, and
upon demand the Corporation shall pay the full amount thereof to the
Representatives. If the applicable Pricing Agreement is terminated pursuant to
Section 9 hereof by reason of the default of one or more Underwriters, the
Corporation shall not be obligated to reimburse any defaulting Underwriter
pursuant to this Section 12.
- 27 -
<PAGE>
13. Notices, etc. All statements, requests, notices and agreements
hereunder and under each Pricing Agreement shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail, telex
or facsimile as set forth in the applicable Pricing Agreement;
(b) if to the Corporation, shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Corporation set forth in
the Registration Statement, Attention: Charles E. Fenton, Esq., Vice
President and General Counsel;
provided, however, that any notice to an Underwriter pursuant to Section 8(c)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Corporation
shall be entitled to act and rely upon any request, consent, notice or agreement
given or made on behalf of the Underwriters by the Representatives.
14. Persons Entitled to Benefit of Agreement. This Agreement and each
Pricing Agreement shall inure to the benefit of and be binding upon the
Underwriters, the Corporation, and their respective successors. This Agreement
and each Pricing Agreement and the terms and provisions hereof and thereof are
for the sole benefit of only those persons, except that (A) the representations,
warranties, indemnities and agreements of the Corporation contained in this
Agreement shall also be deemed to be for the benefit of the person or persons,
if any, who control any Underwriter within the meaning of Section 15 of the Act
and (B) the indemnity agreement of the Underwriters contained in Section 8(b) of
this Agreement shall be deemed to be for the benefit of directors of the
Corporation, officers of the Corporation who have signed the Registration
Statement and any person controlling the Corporation within the meaning of
Section 15 of the Act. Nothing in this Agreement or any Pricing Agreement is
intended or shall be construed to give any person, other than the persons
referred to in this Section 14, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any Pricing Agreement or any provision
contained herein or therein.
15. Definition of the Terms "Business Day" and "Subsidiary". For purposes
of this Agreement and each Pricing Agreement, (a) "business day" means any day
on which the New York Stock Exchange, Inc. is open for trading and (b)
"subsidiary" has the meaning set forth in Rule 405 of the 1933 Act Regulations.
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<PAGE>
16. Governing Law. This Agreement and each Pricing Agreement shall be
governed by and construed in accordance with the laws of New York.
17. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement or any Pricing Agreement.
- 29 -
<PAGE>
SCHEDULE 1
LIST OF MAJOR SUBSIDIARIES
Black and Decker Inc.
Black and Decker (U.S.) Inc.
Emhart Corporation
<PAGE>
ANNEX I
-------
FORM OF
PRICING AGREEMENT
-----------------
[Name of Representative(s)]
as Representative(s) of the
several Underwriters named
in Schedule I hereto
, 199
Dear Sirs:
The Black & Decker Corporation, a Maryland corporation (the
"Corporation"), proposes, subject to the terms and conditions stated herein and
in the Underwriting Agreement - Basic Provisions dated as of __________, 1994
(the "Underwriting Agreement") to issue and sell to the Underwriters named in
Schedule I hereto (the "Underwriters") the Securities specified in Schedule II
hereto (the "Designated Securities"). Each of the provisions of the
Underwriting Agreement is incorporated herein by reference in its entirety and
shall be deemed to be a part of this Pricing Agreement to the same extent as if
such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Pricing Agreement. Unless otherwise defined
herein, terms defined in the Underwriting Agreement are used herein as therein
defined. Capitalized terms not otherwise defined herein or in the Underwriting
Agreement shall have the respective meanings set forth in the Indenture. The
Representatives designated to act on behalf of the Representatives and on behalf
of each of the Underwriters of Designated Securities pursuant to the
Underwriting Agreement and the address referred to in Section 13 of the
Underwriting Agreement are set forth in Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you, is now proposed to be filed with the
Commission.
On the basis of the representations, warranties, covenants and
agreements of the Corporation contained herein and in the Underwriting
Agreement, but subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Corporation agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Corporation, at the time
and place and at the purchase price to the Underwriters set
<PAGE>
forth in Schedule II hereto, the principal amount of Designated Securities set
forth opposite the name of such Underwriter in Schedule I hereto.
This Pricing Agreement may be executed in one or more counterparts
and, if executed in more than one counterpart, the executed counterparts shall
each be deemed to be an original but all such counterparts shall together
constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us a counterpart hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
on the one hand and the Corporation on the other. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is or will be
pursuant to the authority set forth in a form of Agreement Among Underwriters.
Very truly yours
THE BLACK & DECKER CORPORATION
By:
-------------------------
Title:
Accepted as of the date hereof:
[NAME OF REPRESENTATIVE(S)]
By:
-----------------------------------
Title:
For itself and the other several
Underwriters named in Schedule I
hereto
- 2 -
<PAGE>
SCHEDULE I TO PRICING AGREEMENT
-------------------------------
<TABLE>
<CAPTION>
Principal Amount
of Designated
Securities to
Underwriters be Purchased
------------ ----------------
<S> <C>
[Name of Representative(s)] . . . . . . . $
[Names of Other Underwriters] . . . . . . .
---------------
Total . . . . . . . . . . . . . . $
===============
</TABLE>
<PAGE>
SCHEDULE II TO PRICING AGREEMENT
--------------------------------
Title of Designated Securities:
- ------------------------------
[ %] [Extendable] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
Aggregate Principal Amount:
- --------------------------
$
Denominations:
- -------------
[$1,000] [$5,000] [$ ]
Initial Offering Price to Public:
- --------------------------------
% of the principal amount of the Designated
Securities, plus accrued interest from to
[and accrued amortization, if any, from
to ]
Purchase Price by Underwriters:
- ------------------------------
% of the principal amount of the Designated
Securities, plus accrued interest from to
[and accrued amortization, if any, from
to ]
Maturity:
- --------
Interest Rate:
- -------------
[ %] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
- ----------------------
[months and dates]
Regular Record Dates:
- --------------------
[months and dates]
Redemption Provisions:
- ---------------------
[No redemption provisions]
[The Designated Securities may be redeemed, [otherwise than
through the sinking fund,] in whole or in part at the option
of the Corporation, in the amount of $ or an integral
multiple thereof,
[on or after , at the
following redemption prices (expressed in
percentages of principal amount). If
[redeemed on or before , , %, and
if] redeemed during the 12-month period
beginning ,
<PAGE>
Year Redemption Price
---- ----------------
and thereafter at 100% of their principal amount, together in each
case with accrued interest to the redemption date.]
[on any interest payment date falling on or after , ,
at the election of the Corporation, at a redemption price equal to
the principal amount thereof, plus accrued interest to the date of
redemption.]
[Other possible redemption provisions, such as mandatory redemption
upon occurrence of certain events or redemption for changes in tax
law]
[Restrictions on refunding]
Sinking Fund Provisions:
- -----------------------
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking
fund to retire $ principal amount of Designated Securities on
in each of the years through at 100% of their principal
amount plus accrued interest] [, together with [cumulative] [non-
cumulative] redemptions at the option of the Corporation to retire an
additional $ principal amount of Designated Securities in the
years through at 100% of their principal amount plus
accrued interest. Any sinking fund requirement shall be reduced by
the aggregate principal amount of Designated Securities delivered to
the Trustee by the Corporation at least _____ days prior to the date
on which payments are to be made under the sinking fund and designated
for that purpose.]
[If Designated Securities are Extendable Debt
--------------------------------------------
Securities, insert--
------------------
Extendable Provisions:
- ---------------------
The Designated Securities are repayable on , at the option of
the holder, at their principal amount with accrued interest. The
initial annual interest rate will be %, and thereafter the
annual interest rate will be adjusted on , , and
to a rate not less than % of the effective annual interest rate on
obligations with year maturities as of the [interest date
15 days prior to maturity date] prior to such [insert maturity date].]
- 2 -
<PAGE>
[If Designated Securities are Convertible Securities, insert--
-----------------------------------------------------------
Floating Rate Provisions:
- ------------------------
[No floating rate provisions.]
[The initial annual interest rate will be % through
[and thereafter will be adjusted [monthly]
[on each , , and
] [to an annual rate of % above the
average rate for -year [-month] [securities]
[certificates of deposit] by and
[insert names of banks].] [and the annual interest rate
(thereafter] [from through ] will be the
interest yield equivalent of the weekly average per annum
market discount rate for -month Treasury bills
plus % of the Interest Differential (the excess, if
any, of (i) the then-current weekly average per annum
secondary market yield for -month certificates
of deposit over (ii) the then-current interest yield
equivalent of the weekly average per annum market
discount rate for -month Treasury bills); [from
and thereafter the rate will be the then-current
interest yield equivalent plus % of the Interest
Differential].]
Form of Designated Securities:
- -----------------------------
[Book-entry] [Registered]
Name and Address of Representative(s):
- -------------------------------------
[Form of Payment for Designated Securities:
-----------------------------------------
[Same-day] [Next-day] funds]
Time of Delivery:
- ----------------
[time and date], 19
Closing Location:
- ----------------
Simpson Thacher & Bartlett, New York, New York
[Additional Comfort Procedures:]
-----------------------------
[Listing Requirement:]
- --------------------
Partial Reimbursement of Underwriters' Expenses:
- -----------------------------------------------
[None] [$_________]
[Additional Countries for Purposes of Section 5(g):]
- ---------------------------------------------------
[Additional Countries for Purposes of Section 7(l):]
- ---------------------------------------------------
[Other Terms:]
-----------
- 3 -
<PAGE>
================================================================================
THE BLACK & DECKER CORPORATION
Issuer
and
MARINE MIDLAND BANK
Trustee
_____________
INDENTURE
Dated as of __________ ___, 1994
_____________
Debt Securities
================================================================================
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
<TABLE>
<CAPTION>
<S> <C> <C>
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................................... 12
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.................... 14
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.... 15
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
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
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<S> <C> <C>
SECTION 308. Persons Deemed Owners..................... 34
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 Successor
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......................... 47
SECTION 502. Acceleration.............................. 49
SECTION 503. Other Remedies............................ 49
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................................ 51
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................. 54
SECTION 604. May Hold Securities....................... 56
SECTION 605. Money Held in Trust....................... 56
SECTION 606. Compensation and Reimbursement............ 56
SECTION 607. Disqualification; Conflicting Interests... 57
SECTION 608. Corporate Trustee Required, Different
Trustees for Different Series;
Eligibility............................... 57
</TABLE>
- ii -
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 609. Resignation and Removal, Appointment of
Successor................................. 58
SECTION 610. Acceptance of Appointment by Successor.... 60
SECTION 611. Merger, Conversion, Consolidation or
Succession to Business.................... 61
SECTION 612. Preferential Collection of Claims Against
Company................................... 61
SECTION 613. Authenticating Agents..................... 61
SECTION 614. Reports by Trustee to Holders............. 63
ARTICLE SEVEN
MERGER, CONSOLIDATION, CONVEYANCE OR TRANSFER
SECTION 701. Where Company May Merge, Etc.............. 63
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 801. Supplemental Indentures Without Consent
of Holders................................ 64
SECTION 802. Supplemental Indentures With Consent of
Holders................................... 65
SECTION 803. Execution of Supplemental Indentures...... 67
SECTION 804. Effect of Supplemental Indentures......... 67
SECTION 805. Conformity With Trust Indenture Act....... 67
SECTION 806. Reference in Securities to Supplemental
Indentures................................ 67
ARTICLE NINE
COVENANTS
SECTION 901. Certain Definitions....................... 68
SECTION 902. Payment of Securities..................... 69
SECTION 903. Limitation on Liens....................... 69
SECTION 904. Limitation on Sale-Leaseback
Transactions.............................. 70
SECTION 905. No Lien Created, etc...................... 71
SECTION 906. Compliance Certificate.................... 71
SECTION 907. Commission Reports........................ 71
SECTION 908. Money for Securities Payments to Be Held
in Trust.................................. 71
SECTION 909. Maintenance of Office or Agency........... 73
ARTICLE TEN
REDEMPTION OF SECURITIES
SECTION 1001. Applicability of This Article............. 75
</TABLE>
- iii -
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 1002. Election to Redeem; Notice to Trustee..... 75
SECTION 1003. Selection by Trustee of Securities to Be
Redeemed.................................. 75
SECTION 1004. Notice of Redemption...................... 76
SECTION 1005. Deposit of Redemption Price............... 77
SECTION 1006. Securities Payable on Redemption Date..... 77
SECTION 1007. Securities Redeemed in Part............... 78
ARTICLE ELEVEN
HOLDERS' MEETINGS
SECTION 1101. Purposes of Meetings...................... 79
SECTION 1102. Call of Meetings by Trustee............... 79
SECTION 1103. Call of Meetings by Company or Holders.... 79
SECTION 1104. Qualifications for Voting................. 80
SECTION 1105. Regulations............................... 80
SECTION 1106. Voting.................................... 81
SECTION 1107. No Delay of Rights by Meeting............. 81
</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.
- iv -
<PAGE>
INDENTURE dated as of __________ ___, 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.
<PAGE>
"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, 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, in the London edition of the Financial Times and 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
place where any specified act pursuant to this Indenture is to occur, are
authorized or obligated by law to close.
2
<PAGE>
"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
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) by 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 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 office of Marine Midland Bank, at the date
of the execution of this Indenture, is located at 140 Broadway, New York, New
York 10015.
"corporation" includes corporations, limited liability companies,
associations, companies and business trusts.
3
<PAGE>
"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 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, and if at any time there is more than one such Person,
"Depositary" as used with respect to the Securities of any such series shall
mean the Depositary with respect to the Securities of 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.
"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
4
<PAGE>
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.
"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
5
<PAGE>
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 Currency
Determination Agent. 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.
"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 independent legal counsel
of recognized standing and, for all other purposes hereof, 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.
6
<PAGE>
"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 Affiliate
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 the Trustee knows to
be so owned shall be so disregarded. Securities so owned 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 Affiliate 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
7
<PAGE>
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.
"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 the chairman or vice chairman of the board of directors,
the chairman or vice chairman of the executive committee of the board of
directors, the president, any
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vice president (whether or not designated by a number or a word or words added
before or after the title "vice president"), the secretary, any assistant
secretary, the treasurer, any assistant treasurer, the cashier, any assistant
cashier, any trust officer or assistant trust officer, the controller or any
assistant controller or any other officer or employee of such Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer or employee to whom such matter is referred because of
his knowledge of and familiarity with the particular subject.
"Securities" means securities evidencing unsecured 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 Article Six hereof, shall also
include its successors and assigns as 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.
"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.
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"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 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,
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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 to him 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 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.
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(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
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:
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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 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.
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In any case where notice to Holders of Registered Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice 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.
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.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
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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.
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
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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 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.
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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:
"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
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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, 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
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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;
(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 integral 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;
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(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;
(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 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
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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).
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.
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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 integral 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.
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 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
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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.
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
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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 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.
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
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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 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.
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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 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
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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.
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.
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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 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
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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
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
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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 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
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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,
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 and the Company receive evidence to
their 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
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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 Company and such Trustee and any agent of either of them of the
destruction, loss or theft of such Security and the ownership thereof; provided,
however, that the principal of (and premium, if any) and interest, if any, on
Bearer Securities shall, except as otherwise provided 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 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
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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,
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 "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
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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).
(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
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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 transfer, exchange or payment.
The Trustee and no one else shall cancel or destroy all Securities surrendered
for 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
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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.
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 interest, if any, on any Registered 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
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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 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.
(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 Regular Record Date for each payment date for Registered Securities of any
series, the Currency Determination Agent 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, 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
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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 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.
(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) of this Section 311.
(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.
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(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 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
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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 Currency
Determination Agent (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 Currency
Determination Agent (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 Currency Determination Agent.
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 Successor 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
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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).
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 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
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(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 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
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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 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 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
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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 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, 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
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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.
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
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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
(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 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.
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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 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 or
interest 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:
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(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 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
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(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.
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 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 Discounted 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.
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 Discounted Securities, such amount of principal as
may be provided for in such Securities) or interest on the Securities or
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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 acquiescence in the Event of Default. No
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 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
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(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.
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 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.
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The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section.
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 man would
exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee 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 conferred upon
such
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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 of the Trustee assigned
to the Corporate Trust Department of the Trustee (or any successor division
or department of the Trustee) 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;
and
(i) 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.
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 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 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
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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.
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.
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 the case of (i) or (ii), 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
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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 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
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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 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.
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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 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.
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(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 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 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
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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 director or officer of 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 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 Trustee for the Securities of each series agrees to pay to any
corporation any director or officer of which has been appointed as
Authenticating Agent for such series from time to time reasonable compensation
for such services, and such Trustee shall be entitled to be reimbursed for such
payments, subject to Section 606.
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
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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"
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.
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.
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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);
(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;
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(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.
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
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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 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(6),
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.
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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 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.
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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.
"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
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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 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
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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 (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
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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 stating whether or not
the signers know of any default by the Company in performing its covenants in
Section 903 or 904. If they do know of such a default, the certificate shall
describe the 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.
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
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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 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
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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 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
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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.
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
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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.
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
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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,
(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
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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.
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 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
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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 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.
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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.
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
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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 given 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 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.
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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 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:___________________________
Title
Attest:___________________________
Secretary
MARINE MIDLAND BANK,
TRUSTEE
[SEAL] By:_________________________________
Vice President
Attest:___________________________
Trust Officer
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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
_________________________________, 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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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 days
owner(s) of the portion of the prior to Exchange Date]
temporary Global Security to which
this certificate relates.
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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
_________________________________, 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
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our Member Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange or 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
_________________________________, 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
C-1
<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:_________________________________
C-2
<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
_________________________________, 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 1.1635(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.
D-1
<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
<PAGE>
Miles & Stockbridge,
a Professional Corporation
10 Light Street
Baltimore, Maryland 21202
May 25, 1994
The Black & Decker Corporation
701 East Joppa Road
Towson, Maryland 21286
Ladies and Gentlemen:
We have acted as counsel to The Black & Decker Corporation, a Maryland
corporation (the "Corporation"), in connection with the filing of a
Registration Statement on Form S-3 (the "Registration Statement") on the date
hereof under the Securities Act of 1933, as amended (the "Act"), in respect of
the Corporation's Debt Securities to be issued from time to time pursuant to
Rule 415 under the Act. In this capacity we have reviewed the Charter and By-
Laws of the Corporation, the form of Indenture to be entered into by and
between the Corporation and Marine Midland Bank, as Trustee (as supplemented or
modified by the Trust Indenture Act of 1939, collectively, the "Indenture"),
the Registration Statement including the exhibits thereto, the corporate
proceedings of the Corporation relating to the authorization of the issuance of
the Debt Securities and such certificates and other documents as we deemed
necessary or advisable for the purposes of this opinion.
Members of our firm are admitted to the Bar in the State of Maryland. We
express no opinion as to the laws of any state or jurisdiction other than, and
our opinions expressed herein are limited to, the laws of the State of Maryland
and the federal laws of the United States of America.
Based on the foregoing, we are of the opinion that the Debt Securities, when
duly authorized and executed in accordance with the terms of the resolutions
adopted by the Board of Directors of the Corporation and the terms of the
Indenture, authenticated by the Trustee in accordance with the terms of the
Indenture, and issued and delivered against payment therefor, will be legally
issued and will constitute valid and binding obligations of the Corporation
entitled to the benefits of the Indenture.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the heading "Validity"
in the Prospectus. In giving our consent, we do not thereby admit that we are
in the category of persons whose consent is required under Section 7 of the Act
or the rules and regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
Miles & Stockbridge, a Professional
Corporation
By: GLENN C. CAMPBELL
---------------------------------
Principal
<PAGE>
THE BLACK & DECKER CORPORATION
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(in millions, except ratios)
<TABLE>
<CAPTION>
Quarter Year Ended
Ended December 31
------------------ -----------------------------------------
Year Ended
April 3 April 4 Transition September 24
1994 1993 1993 1992 1991 1990 Period 1989
------- ------- ---- ---- ---- ---- ---------- ------------
(Dollars in millions)
(unaudited)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
EARNINGS:
Earnings (loss) before income taxes,
extraordinary item, and cumulative
effects of changes in accounting
principles . . . . . . . . . . . . . . . $ 21.8 $ 23.6 $ 155.9 $ (29.0) $ 107.5 $ 123.5 $ (2.0) $ 62.9
Interest expense . . . . . . . . . . . . . 46.0 43.5 180.0 227.6 308.5 398.2 106.9 232.0
Portion of rent expense
representative of an interest
factor . . . . . . . . . . . . . . . . . 7.1 7.9 28.5 35.0 32.3 32.0 8.0 17.0
------ ------ ------- ------- ------- ------- ------- -------
Adjusted earnings before taxes and
fixed charges. . . . . . . . . . . . . . $ 74.9 $ 75.0 $ 364.4 $ 233.6 $ 448.3 $ 553.7 $ 112.9 $ 311.9
====== ====== ======= ======= ======= ======= ======= =======
FIXED CHARGES:
Interest expense . . . . . . . . . . . . . $ 46.0 $ 43.5 $ 180.0 $ 227.6 $ 308.5 $ 398.2 $ 106.9 $ 232.0
Portion of rent expense
representative of an interest
factor . . . . . . . . . . . . . . . . . 7.1 7.9 28.5 35.0 32.3 32.0 8.0 17.0
------ ------ ------- ------- ------- ------- ------- -------
Total fixed charges. . . . . . . . . . . . $ 53.1 $ 51.4 $ 208.5 $ 262.6 $ 340.8 $ 430.2 $ 114.9 $ 249.0
====== ====== ======= ======= ======= ======= ======= =======
RATIO OF EARNINGS TO FIXED CHARGES . . . . 1.41 1.46 1.75 -- 1.32 1.29 -- 1.25
DEFICIENCY IN CONVERAGE. . . . . . . . . . -- -- -- $ 29.0 -- -- $ 2.0 --
</TABLE>
<PAGE>
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-3 and related Prospectus of The Black &
Decker Corporation for the registration of debt securities in the amount of
$500,000,000 and to the incorporation by reference therein of our report dated
February 16, 1994, with respect to the consolidated financial statements and
schedules of The Black & Decker Corporation included in its Annual Report
(Form 10-K) for the year ended December 31, 1993, filed with the Securities
and Exchange Commission.
/s/ Ernst & Young
Baltimore, Maryland
May 19, 1994
<PAGE>
POWER OF ATTORNEY
-----------------
We, the undersigned Directors and Officers of The Black & Decker
Corporation (the "Corporation"), hereby constitute and appoint Nolan D.
Archibald, Charles E. Fenton and Thomas M. Schoewe, and each of them, with power
of substitution, our true and lawful attorneys-in-fact with full power to sign
for us, in our names and in the capacities indicated below, a registration
statement or registration statements on Form S-3, and all amendments and
supplements thereto (including post-effective amendments), for the purpose of
registering under the Securities Act of 1933, as amended, Debt Securities of the
Corporation with an aggregate initial public offering price of up to
$750,000,000.
NOLAN D. ARCHIBALD Director, Chairman, April 26, 1994
- ------------------------- President and Chief
Nolan D. Archibald Executive Officer
(Principal Executive
Officer)
BARBARA L. BOWLES Director April 26, 1994
- -------------------------
Barbara L. Bowles
MALCOLM CANDLISH Director April 26, 1994
- -------------------------
Malcolm Candlish
ALONZO G. DECKER, JR. Director April 26, 1994
- -------------------------
Alonzo G. Decker, Jr.
ANTHONY LUISO Director April 26, 1994
- -------------------------
Anthony Luiso
J. DEAN MUNCASTER Director April 26, 1994
- -------------------------
J. Dean Muncaster
LAWRENCE R. PUGH Director April 26, 1994
- -------------------------
Lawrence R. Pugh
MARK H. WILLES Director April 26, 1994
- -------------------------
Mark H. Willes
M. CABELL WOODWARD, JR. Director April 26, 1994
- -------------------------
M. Cabell Woodward, Jr.
<PAGE>
THOMAS M. SCHOEWE Vice President-- May 5, 1994
- ------------------------- Finance and Treasurer
Thomas M. Schoewe (Principal Financial
Officer)
STEPHEN F. REEVES Corporate Controller May 5, 1994
- ------------------------- (Principal Accounting
Stephen F. Reeves Officer)
- 2 -
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
-----------
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
-----------
Marine Midland Bank
(Exact name of trustee as specified in its charter)
New York 16-1057879
(Jurisdiction of incorporation (I.R.S. Employer
or organization if not a U.S. Identification No.)
national bank)
140 Broadway, New York, N.Y. 10005-1180
(212) 658-1000 (Zip Code)
(Address of principal executive offices)
The Black & Decker Corporation
(Exact name of obligor as specified in its charter)
Maryland 52-0248090
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
701 East Joppa Road
Towson, Maryland 21286
(410) 716-3900
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of Indenture Securities)
<PAGE>
General
Item 1. General Information.
--------------------
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory
authority to which it is subject.
State of New York Banking Department.
Federal Deposit Insurance Corporation, Washington, D.C.
Board of Governors of the Federal Reserve System,
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
--------------------------
If the obligor is an affiliate of the trustee, describe
each such affiliation.
None
<PAGE>
Item 16. List of Exhibits.
-----------------
<TABLE>
<CAPTION>
Exhibit
- -------
<C> <S>
T1A(i) - Copy of the Organization Certificate of
Marine Midland Bank.
T1A(ii) - Certificate of the State of New York
Banking Department dated December
31, 1993 as to the authority of Marine
Midland Bank to commence business.
T1A(iii) - Not applicable.
T1A(iv) - Copy of the existing By-Laws of Marine
Midland Bank as adopted on January
20, 1994.
T1A(v) - Not applicable.
T1A(vi) - Consent of Marine Midland Bank
required by Section 321(b) of the Trust
Indenture Act of 1939.
T1A(vii) - Copy of the latest report of condition
of the trustee (December 31, 1993),
published pursuant to law or the
requirement of its supervisory or
examining authority.
T1A(viii) - Not applicable.
T1A(ix) - Not applicable.
</TABLE>
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
Marine Midland Bank, a banking corporation and trust company organized under the
laws of the State of New York, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York on the 23rd day of May, 1994.
MARINE MIDLAND BANK
By: /s/ BarbaraJean McCauley
---------------------------------
BarbaraJean McCauley
Assistant Vice President
<PAGE>
EXHIBIT T1A(i)
ORGANIZATION CERTIFICATE
of
"MARINE MIDLAND BANK"
We, the undersigned, all being of full age, all but one of us being
citizens of the United States and all of us being residents of the State of New
York, having associated ourselves together for the purpose of forming a trust
company under and pursuant to the Banking Law of the State of New York, do
hereby certify:
First. That the name by which the corporation is to be known is Marine
-----
Midland Bank.
Second. That the place where its principal office is to be located is
------
Buffalo, New York.
Third. That the amount of its capital stock is to be One Hundred Eighty-
-----
five Million and no/100 Dollars ($185,000,000.00) and the number of shares into
which such capital stock is to be divided is 1,850,000 with a par value of
$100.00 each.
Fourth. The shares are not to be classified as preferred and common.
------
If the shares are to be so classified,
(a) The number and par value of shares to be included in each class
are as follows: not applicable.
(b) All the designations, preferences, privileges and voting powers
of the shares of each class, and the restrictions or qualifications thereof
are as follows: not applicable.
(c) The number of shares of common stock which are to be reserved for
issuance in exchange for preferred shares or otherwise to replace any
capital stock represented by preferred shares is none.
Fifth. The name, place of residence and citizenship of each incorporator,
-----
and the number of shares subscribed for by each are:
<PAGE>
<TABLE>
<CAPTION>
No. of
Full Name Residence *Citizenship Shares
--------- --------- ------------ ------
<S> <C> <C> <C>
James H. Cleave New York Canada 0
John M. Endries New York New York 0
Bernard J. Kennedy New York New York 0
Northrup R. Knox New York New York 0
Henry J. Nowak New York New York 0
</TABLE>
Sixth. The term of existence of the corporation is to be perpetual.
-----
Seventh. The number of directors is to be not less than seven or more than
-------
thirty.
Eighth. The names of the incorporators who shall be the directors until
------
the first annual meeting of stockholders are: James H. Cleave, John M. Endries,
Bernard J. Kennedy, Northrup R. Knox and Henry J. Nowak.
Ninth. The corporation is to exercise the powers conferred by Section 100
-----
of the Banking Law.
- -----------------
* If a citizen of New York or a contiguous state, insert name of such state.
<PAGE>
IN WITNESS WHEREOF, We have made, signed and acknowledged this certificate
in duplicate, this 16th day of September, 1993.
/s/ James H. Cleave
- --- ------------------
/s/ John M. Endries
- --- ------------------
/s/ Bernard J. Kennedy
- --- ------------------
/s/ Northrup R. Knox
- --- ------------------
/s/ Henry J. Nowak
- --- ------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF ERIE )
On this 16th day of September, 1993, personally appeared before me James
H. Cleave, John M. Endries, Bernard J. Kennedy, Northrup R. Knox and Henry J.
Nowak, to me known to be the persons described in and who executed the foregoing
certificate and severally acknowledged that they executed the same.
/s/ Helen Kujawa
----------------------
Notary Public
(Attach County Clerk's certificate
authenticating signature of Notary [NOTARIAL SEAL]
Public who takes acknowledgement)
<PAGE>
Ninth. The corporation is to exercise the powers conferred by Section 100
-----
of the Banking Law.
IN WITNESS WHEREOF, We have made, signed and acknowledged this certificate
in duplicate, this 16th day of September, 1993.
/s/ James H. Cleave
- --- ------------------
/s/ John M. Endries
- --- ------------------
/s/ Bernard J. Kennedy
- --- ------------------
/s/ Northrup R. Knox
- --- ------------------
/s/ Henry J. Nowak
- --- ------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF ERIE )
I, David J. Swarts, Clerk of the County of Erie, and also Clerk of the
Supreme and County Courts for said County, the same being Courts of Record, do
hereby certify that HELEN KUJAWA, whose name is subscribed to the deposition
certificate of acknowledgement of proof of the annexed instrument, was at the
time of taking the same a NOTARY PUBLIC in and for the State of New York, duly
commissioned and sworn and qualified to act as such throughout the State of New
York; that pursuant to law a commission, or a certificate of his appointment and
qualifications and his autograph signature, have been filed in my office; that
as such Notary Public he was duly authorized by the laws of the State of New
York to administer oaths and affirmations to receive and certify that
acknowledgement of proof of deeds, mortgages, powers of attorney and other
written instruments for lands, tentaments and heriditaments to be read in
evidence or recorded in this State, to protect notes and to take and certify
affidavits and depositions; and that I am well acquainted with the handwriting
of such Notary Public, or have compared the signature on the annexed instrument
and with his autograph signature deposited in my office, and believe that the
signature is genuine.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of
said County and Courts at Buffalo, this 17th day of September, 1993.
[SEAL]
N.P. No. 7502 /s/ David S. Swarts
-------------------------
Clerk
<PAGE>
ORGANIZATION CERTIFICATE
of
"MARINE MIDLAND BANK"
Received this _____ day of ______________, 19____.
Superintendent of Banks
Filed for examination this _____ day of ______________, 19____.
Superintendent of Banks
________________________ by the Banking Board at a meeting held on the
_____ day of ______________, 19____.
Secretary of the Banking Board
_____________________________________________________ this _____ day of
______________, 19____.
Superintendent of Banks
<PAGE>
Filed in the office of _______________________________ this _____ day of
______________, 19____.
Recorded in the office of ____________________________ this _____ day of
______________, 19____.
<PAGE>
EXHIBIT T1A(ii)
STATE OF NEW YORK
BANKING DEPARTMENT
------------------
KNOW ALL MEN BY THESE PRESENTS,
WHEREAS, the organization certificate of MARINE MIDLAND BANK of Buffalo,
New York has heretofore been duly approved and said MARINE MIDLAND BANK has
complied with the provisions of Chapter 2 of the Consolidated Laws, in respect
of the conversion of MARINE MIDLAND BANK, N.A. into a State trust company under
the name MARINE MIDLAND BANK,
NOW THEREFORE, I, DERICK D. CEPHAS, as Superintendent of Banks of the
State of New York, do hereby authorize the said MARINE MIDLAND BANK to transact
the business of a Trust Company at One Marine Midland Center, Buffalo, Erie
County, within this State.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official
seal of the Banking Department, this 31st day of December in the year one
thousand nine hundred and ninety-three.
[SEAL]
/s/ Derrick D. Cephas
-------------------------
Superintendent
<PAGE>
(Adopted January 20, 1994)
EXHIBIT T1A (iv)
BY-LAWS
of
MARINE MIDLAND BANK
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1.1 Annual Meeting. The annual meeting of the stockholders for
--------------
the election of directors and the transaction of such other business as may
properly come before the meeting shall be held in April each year at the office
of the Bank, One Marine Midland Center, City of Buffalo, State of New York.
Section 1.2 Special Meetings. Except as otherwise specifically provided
----------------
by statute, special meetings of the stockholders may be called for any purpose
at any time by the Board of Directors, the Chairman of the Board, the President,
the Chief Executive Officer or the Secretary at such place and time and on such
day as may be designated in the notice of meeting. Business transacted at all
special meetings of stockholders shall be confined to the purposes stated in the
notice of meeting.
Section 1.3 Quorum. The holders of a majority of the stock issued and
------
outstanding, and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of stockholders, unless
otherwise provided by law.
Section 1.4 Voting.
------
a. At any meeting of the stockholders each stockholder may vote in person
or by proxy duly authorized in writing. Each stockholder shall at every meeting
of stockholders be entitled to one vote for each share of stock held by such
stockholder. A majority of the votes cast shall decide every question or matter
submitted to the stockholders at any meeting, unless otherwise provided by law
or by the Organization Certificate.
b. Any action required to be taken at an annual or special meeting of
stockholders may be taken without a meeting by written consent setting forth the
action and signed by the holders of all of outstanding shares entitled to vote
thereon.
Section 1.5 Notice of Meeting. Written notice of each meeting of
-----------------
stockholders stating the place, date and hour of the meeting and, in the case of
a special meeting, the
<PAGE>
purpose or purposes for which the meeting is called and the person or persons
calling the meeting, shall be delivered personally or shall be mailed postage
prepaid to each stockholder entitled to vote at such meeting, directed to the
stockholder at his or her address as it appears on the records of the Bank, not
less than ten or more than 50 days before the date of the meeting.
ARTICLE II
DIRECTORS
Section 2.1 Board of Directors. The Board of Directors (the "Board")
------------------
shall have power to manage and administer the business and affairs of the Bank
and, except as expressly limited by law, all corporate powers of the Bank shall
be vested in and may be exercised by the Board unless such powers are required
by statute, the Organization Certificate or these By-Laws to be exercised by the
stockholders.
Section 2.2 Number and Term. The Board shall consist of not less than
---------------
seven or more than thirty directors, the exact number within such minimum and
maximum limits to be fixed and determined from time to time by resolution of a
majority of the entire Board or by resolution of the stockholders at any meeting
of stockholders. Unless sooner removed or disqualified, each director shall
hold office until the next annual meeting of the stockholders and until the
director's successor has been elected and qualified.
Section 2.3 Organization Meeting. At its first meeting after each annual
--------------------
meeting of stockholders, the Board shall choose a Chairman of the Board, a
President and a Chief Executive Officer from its own members and otherwise
organize the new Board and appoint officers of the Bank for the succeeding year.
Section 2.4 Chairman of the Board. The Chairman of the Board shall
---------------------
preside at all meetings of the Board and of stockholders and perform such duties
as shall be assigned from time to time by the Board. In the absence of the
Chairman of the Executive Committee, the Chairman of the Board shall act as
Chairman of the Executive Committee. Except as may be otherwise provided by the
By-Laws or the Board, the Chairman of the Board shall be a member ex officio of
----------
all committees authorized by these By-Laws or the Board. The Chairman of the
Board shall be kept informed by the executive officers about the affairs of the
Bank.
Section 2.5 Regular Meetings. The regular meetings of the Board shall be
----------------
held each month at the time and location designated by the Board. No notice of
a regular meeting shall be required if the meeting is held according to a
schedule of regular meetings approved by the Board.
Section 2.6 Special Meetings. Special meetings of the Board may be
----------------
called by the Chairman of the Board, the President, the Chief Executive Officer
or the Secretary or at the written request of any three or more directors. Each
member of the Board shall be
<PAGE>
given notice stating the time and place of each such special meeting by
telegram, telephone or similar electronic means or in person at least one day
prior to such meeting, or by mail at least three days prior.
Section 2.7 Quorum. One third of the entire Board shall constitute a
------
quorum at any meeting, except when otherwise provided by law. If a quorum is
not present at any meeting, a majority of the directors present may adjourn the
meeting, and the meeting may be held, as adjourned, without further notice
provided that a quorum is then present. The act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board,
unless otherwise specifically provided by statute, the Organization Certificate
or these By-Laws.
Section 2.8 Vacancies. When any vacancy occurs among the directors, the
---------
remaining members of the Board may appoint a director to fill each such vacancy
at any regular meeting of the Board or at a special meeting called for that
purpose. Any director so appointed shall hold office until the next annual
meeting of the stockholders and until the director's successor has been elected
and qualified, unless sooner displaced.
Section 2.9 Removal of Directors. Any director may be removed either
--------------------
with or without cause, at any time, by a vote of the holders of a majority of
the shares of the Bank at any meeting of stockholders called for that purpose.
A director may be removed for cause by vote of a majority of the entire Board.
Section 2.10 Compensation of Directors. The Board shall fix the amounts
-------------------------
to be paid directors for their services as directors and for their attendance at
the meetings of the Board or of committees or otherwise. No director who
receives a salary from the Bank shall receive any fee for attending meetings of
the Board or of any of its committees.
Section 2.11 Action by the Board. Except as otherwise provided by law,
-------------------
corporate action to be taken by the Board shall mean such action at a meeting of
the Board or the Executive Committee of the Board. Any one or more members of
the Board or any committee may participate in a meeting of the Board or
committee by means of a conference telephone or similar communications equipment
allowing all persons participating in the meeting to hear each other at the same
time. Participation by such means shall constitute presence in person at a
meeting.
Section 2.12 Waiver of Notice. Notice of a meeting need not be given to
----------------
any director who submits a signed waiver of notice before or after the meeting
or who attends the meeting without protesting the lack of such notice prior to
or at the commencement of the meeting.
Section 2.13 Advisory and Regional Boards. The Board, the Chairman of
----------------------------
the Board, the President, the Chief Executive Officer or any Regional President
may establish Advisory Boards or Regional Boards and committees thereof for any
one or more of the Bank's regions, offices, or departments and make or authorize
appointments to be made thereto. Appointees to such boards and committees need
not be stockholders, directors or
<PAGE>
officers of the Bank, and they shall have and perform only such functions as may
be assigned to them by, shall serve at the pleasure of, and shall be compensated
by fees fixed by the Board, the Chairman of the Board, the President, the Chief
Executive Officer or the Regional President making the appointment.
ARTICLE III
COMMITTEES OF THE BOARD
Section 3.1 Executive Committee.
-------------------
a. There shall be an Executive Committee which shall be composed of at
least five members elected by the Board from among its members at its first
meeting following the annual meeting of stockholders to serve for the ensuing
year and shall include the Chairman of the Board, the President, the Chief
Executive Officer and the Chairman of the Executive Committee, all of which
offices may be held by one person. The Chairman of the Board may appoint one or
more directors as alternate members to serve in place of any absent members of
the Executive Committee. Any vacancy in the Executive Committee shall be filled
by the Board, but until its next regular Board meeting may be filled temporarily
by the Chairman of the Board.
b. The Executive Committee shall possess and exercise all of the powers
of the Board except (i) when the latter is in session and (ii) as provided
otherwise in the New York Banking Law.
Section 3.2 Chairman of the Executive Committee. The Board shall appoint
-----------------------------------
one of its members to be Chairman of the Executive Committee. The Chairman of
the Board, the President or the Chief Executive Officer may at the same time be
appointed Chairman of the Executive Committee. The Chairman of the Executive
Committee shall preside at all meetings of the Executive Committee, and the
Chairman of the Executive Committee shall, in the absence of the Chairman of the
Board, the President and the Chief Executive Officer, preside at all meetings of
stockholders and the Board. The Chairman of the Executive Committee shall also
perform such other duties and be vested with such other powers as may from time
to time be conferred upon him or her by these By-Laws or as shall be assigned to
him or her from time to time by the Board or the Chief Executive Officer.
Section 3.3 Meetings of the Executive Committee. Meetings of the
-----------------------------------
Executive Committee may be called by the Chairman of the Board, the Chairman of
the Executive Committee, the President, the Chief Executive Officer or the
Secretary and may be held at any place and at any time designated in the notice
thereof. Each member of the Executive Committee shall be given notice stating
the time and place of each such meeting, by telegram, telephone or similar
electronic means or in person at least one day prior to such meeting, or by mail
at least three days prior.
Section 3.4 Examining Committee. The Board shall designate an Examining
-------------------
<PAGE>
Committee, which shall hold office until the next annual meeting of the Board
following the annual meeting of stockholders, consisting of not less than three
of its members, other than officers of the Bank, and whose duty it shall be to
make an examination at least once during each calendar year and within 15 months
of the last such examination into the affairs of the Bank including the
administration of fiduciary powers, or cause suitable examinations to be made by
auditors responsible only to the Board and to report the result of such
examination in writing to the Board. Such report shall state whether the Bank
is in a sound condition, whether adequate internal controls and procedures are
being maintained and shall recommend to the Board such changes in the manner of
conducting the affairs of the Bank as shall be deemed advisable. The Committee
shall at such time ascertain whether the Bank's fiduciary responsibilities have
been administered in accordance with law and sound fiduciary principles.
Section 3.5 Other Committees. The Board may appoint, from time to time,
----------------
from its own members, committees of the Board of three or more persons, for such
purposes and with such powers as the Board may determine.
ARTICLE IV
OFFICERS
Section 4.1 Appointment of Officers. At its annual meeting following the
-----------------------
annual meeting of stockholders, the Board shall appoint from among its members a
Chairman of the Board, a President, a Chief Executive Officer and a Secretary.
The Chairman of the Board or the President may also be appointed as the Chief
Executive Officer. At such meeting, the Board shall also appoint one or more
Vice Presidents, and may at such meeting or at other meetings of the Board
appoint such other officers as it may determine from time to time. The Board
may also authorize a committee of the Board to appoint such officers as are not
required to be appointed by the Board at a meeting.
Section 4.2 Duties of President. In the absence of the Chairman of the
-------------------
Board, the President shall preside at all meetings of the Board and of
stockholders and in the absence of the Chairman of the Executive Committee and
the Chairman of the Board shall preside at all meetings of the Executive
Committee. Except as may be otherwise provided by the By-Laws or the Board, the
President shall be a member ex officio of all committees authorized by these By-
----------
Laws or the Board. The President shall have general executive powers, shall
participate actively in all major policy decisions and shall have and may
exercise any and all other powers and duties pertaining by law, regulation or
practice to the Office of President or imposed by these By-Laws. The President
shall also have and may exercise such further powers and duties as from time to
time may be conferred or assigned by the Board or the Chief Executive Officer.
Section 4.3 Duties of Chief Executive Officer. The Chief Executive
---------------------------------
Officer shall exercise general supervision over the policies and business
affairs of the Bank and the carrying out of the policies adopted or approved by
the Board. Except as otherwise
<PAGE>
provided by these By-Laws, the Chief Executive Officer shall have the power to
determine the duties of the officers of the Bank and to employ and discharge
officers and employees. Except as otherwise provided by the By-Laws or the
Board, the Chief Executive Officer shall be a member ex officio of all
----------
committees authorized by these By-Laws or created by the Board. In the absence
of the Chairman of the Board and the President, the Chief Executive Officer
shall preside at all meetings of the Board and of stockholders.
Section 4.4 Duties of Vice Presidents. Each Vice President shall have
-------------------------
such titles, seniority, powers and duties as may be assigned by the Board, a
committee of the Board, the President or the Chief Executive Officer.
Section 4.5 Secretary. The Secretary shall be Secretary of the Board and
---------
of the Bank and shall keep accurate minutes of all meetings of stockholders and
of the Board. The Secretary shall attend to the giving of all notices required
to be given by these By-Laws; shall be custodian of the corporate seal, records,
documents and papers of the Bank; shall provide for the keeping of proper
records of all transactions of the Bank; shall have and may exercise any and all
other powers and duties pertaining by law, regulation or practice to the office
of Secretary or imposed by these By-Laws; and shall also perform such other
duties as may be assigned from time to time by the Board, the president or the
Chief Executive Officer.
Section 4.6 Other Officers. The President or the Chief Executive Officer
--------------
or his or her designee may appoint all officers whose appointment does not
require approval by the Board or a committee of the Board and assign to them
such titles as from time to time may appear to be required or desirable to
transact the business of the Bank. Each such officer shall have such powers and
duties as may be assigned by the Board, the president or the Chief Executive
Officer.
Section 4.7 Tenure of Office. The Chairman of the Board, the President,
----------------
the Chief Executive Officer, the Chairman of the Executive Committee, the
Secretary and the Vice Presidents shall hold office for the current year for
which the Board was elected and until their successors have been appointed and
qualified, unless they shall resign, become disqualified or be removed. All
other officers shall hold office until their successors have been appointed and
qualify, unless they shall resign, become disqualified or be removed. The Board
shall have the power to remove the Chairman of the Board, the President, the
Chief Executive Officer, the Chairman of the Executive Committee and the
Secretary. The Board or the Chief Executive Officer or his or her designee
shall have the power to remove all other officers and employees. Any vacancy
occurring in the offices of Chairman of the Board, President or Chief Executive
Officer shall be filled promptly by the Board.
Section 4.8 Compensation. The Board shall by resolution determine from
------------
time to time the officers whose compensation will require approval by the Board
or a committee of the Board. The Chief Executive Officer shall fix the
compensation of all officers and employees whose compensation does not require
approval by the Board or a committee of the Board.
<PAGE>
Section 4.9 Auditor. The Board or the Chief Executive Officer shall
-------
appoint an officer to fill the position of Auditor for the Bank and assign to
such officer such title as is deemed appropriate. The Auditor shall perform all
duties incident to the audit of all departments and offices and of all affairs
of the Bank. The Auditor shall be responsible to the Chief Executive Officer.
The Auditor may at any time report to the Board any matter concerning the
affairs of the Bank that, in the Auditor's judgment, should be brought to its
attention.
Section 4.10 Regional Presidents. The Board may appoint one or more
-------------------
Regional Presidents. Each Regional President shall have such powers and duties
as may be assigned by the Board or the Chief Executive Officer.
ARTICLE V
FIDUCIARY POWERS
Section 5.10 Fiduciary Responsibility. The Board shall appoint an
------------------------
officer or officers or a committee or committees of this Bank whose duties shall
be to manage, supervise and direct the fiduciary activities of the Bank as
assigned by the Board. Such officer or committee shall do or cause to be done
all things necessary or proper in carrying on the assigned activities in
accordance with provisions of law and applicable regulations and shall act
pursuant to opinion of counsel where such opinion is deemed necessary. Opinions
of counsel shall be retained on file in connection with all important matters
pertaining to fiduciary activities. The officer or committee shall be
responsible for all assets and documents held by the Bank in connection with
fiduciary matters assigned by the Board.
Section 5.11 Fiduciary Files. Files shall be maintained containing all
---------------
fiduciary records necessary to assure that fiduciary responsibilities have been
properly undertaken and discharged.
Section 5.12 Fiduciary Investments. Funds held in a fiduciary capacity
---------------------
shall be invested in accordance with the instrument establishing the fiduciary
relationship and applicable law. Where such instrument does not specify the
character and class of investments to be made and does not vest in the Bank a
discretion in the matter, funds held pursuant to such instrument shall be
invested in investments in which corporate fiduciaries may invest under
applicable law.
ARTICLE VI
STOCK AND STOCK CERTIFICATES
Section 6.1 Transfers. Shares of the stock of the Bank shall be
---------
transferable on the books of the Bank, only by the person named in the
certificate or by an attorney, lawfully constituted in writing, and upon
surrender of the certificate therefor. Every person
<PAGE>
becoming a stockholder by such transfer shall, in proportion to his or her
shares, succeed to all rights of the prior holder of such shares.
Section 6.2 Stock Certificates. The certificates of stock of the Bank
------------------
shall be numbered and shall be entered in the books of the Bank as they are
issued. They shall exhibit the holder's name and number of shares and shall be
signed by the Chairman of the Board, the President, the Chief Executive Officer
or any Vice President and by the Secretary or an Assistant Secretary.
ARTICLE VII
CORPORATE SEAL
Section 7.1 Corporate Seal. The Chairman of the Board, the President,
--------------
the Chief Executive Officer, the Secretary or any Assistant Secretary, a Vice
President or Assistant Vice President or other officer designated by the Board
or the Chief Executive Officer or his or her designee shall have authority to
affix the corporate seal to any document requiring such seal and to attest the
same. Such seal shall be substantially in the following form:
(impression)
( of )
( seal )
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 Fiscal Year. The fiscal year of the Bank shall be the
-----------
calendar year.
Section 8.2 Execution of Instruments.
------------------------
a. All agreements, indentures, mortgages, deeds, conveyances, transfers,
certificates, declarations, receipts, discharges, releases, satisfactions,
settlements, petitions, schedules, accounts, affidavits, bonds, undertakings,
proxies and other instruments or documents may be signed, executed,
acknowledged, verified, delivered or accepted in behalf of the Bank or in
connection with the exercise of the fiduciary powers of the Bank, by the
Chairman of the Board, the President, the Chief Executive Officer, the Secretary
or any other officer or employee (other than the Auditor) designated by the
Board or the Chief Executive Officer or his or her designee. Any such
instruments may also be executed, acknowledged, verified, delivered or accepted
in behalf of the Bank in such other manner and by such other officers as the
Board may from time to time direct. The provisions of this Section 8.2 are
supplementary to any other provision of these By-Laws.
<PAGE>
b. When required, the Secretary or any officer or agent designated by the
Board or the Chief Executive Officer or his designee shall countersign and
certify all bonds or certificates issued by the Bank as trustee, transfer agent,
registrar or depository. The Chief Executive Officer or any officer designated
by the Board or the Chief Executive Officer or his or her designee shall have
the power to accept in behalf of the Bank any guardianship, receivership,
executorship or other special or general trust permitted by law. Each of the
foregoing authorizations shall be at the pleasure of the Board, and each such
authorization by the Chief Executive Officer or his or her designee also shall
be at the pleasure of the Chief Executive Officer.
Section 8.3 Records. The By-Laws and the proceedings of all meetings of
-------
the stockholders, the Board and standing committees of the Board shall be
recorded in appropriate minute books provided for the purpose. The minutes of
each meeting shall be signed by the Secretary or other officer appointed to act
as secretary of the meeting.
Section 8.4 Emergency Operations. In the event of war or warlike damage
--------------------
or disaster of sufficient severity to prevent the conduct and management of the
affairs, business and property of the Bank by its directors and officers as
contemplated by these By-Laws, any two or more available members of the then-
incumbent Executive Committee shall constitute a quorum of that committee for
the full conduct and management of the affairs, business and property of the
Bank. In the event of the unavailability at such time of a minimum of two
members of the then-incumbent Executive Committee, any three available directors
shall constitute the Executive Committee for the full conduct and management of
the affairs, business and property of the Bank. This by-law shall be subject to
implementation by resolutions of the Board passed from time to time for that
purpose, and any provisions of these By-Laws (other than this section) and any
resolutions which are contrary to the provisions of this section or to the
provisions of any such implementary resolutions shall be suspended until it
shall be determined by any interim Executive Committee acting under this section
that it shall be to the advantage of the Bank to resume the conduct and
management of its affairs, business and property under all of the other
provisions of these By-Laws.
Section 8.5 Indemnification.
---------------
a. The Bank shall indemnify each person made or threatened to be made a
party to any action or proceeding, whether civil or criminal, by reason of the
fact that such person or such person's testator or intestate is or was a
director or officer of the Bank, or, while a director or officer, serves or
served, at the request of the Bank, any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise in any capacity,
against judgments, fines, penalties, amounts paid in settlement and reasonable
expenses, including attorney's fees, incurred in connection with such action or
proceeding, or any appeal therein, provided that no such indemnification shall
be made if a judgment or other final adjudication adverse to such director or
officer establishes that his or her acts were committed in bad faith or were the
result of active and deliberate dishonesty and were material to the cause of
action so adjudicated, or that he or she personally gained in fact a financial
profit or other advantage to which he or she was not legally entitled, and
provided further that no such indemnification shall be required with respect to
any settlement or
<PAGE>
other nonjudicated disposition of any threatened or pending action or proceeding
unless the Bank has given its prior consent to such settlement or other
disposition.
b. The Bank shall advance or promptly reimburse upon request any director
or officer seeking indemnification hereunder for all expenses, including
attorneys' fees, reasonably incurred in defending any action or proceeding in
advance or the final disposition thereof upon receipt of an undertaking by or on
behalf of such person to repay such amount if such person is ultimately found
not to be entitled to indemnification or, where indemnification is granted, to
the extent the expenses so advanced or reimbursed exceed the amount to which
such person is entitled.
c. This Section 8.5 shall be given retroactive effect, and the full
benefits hereof shall be available in respect of any alleged or actual
occurrences, acts or failures to act prior to the date of the adoption of this
Section 8.5. The right to indemnification of advancement of expenses under this
Section 8.5 shall be a contract right.
Section 8.6 Amendments. These By-Laws may be added to, amended, altered
----------
or repealed at any regular meeting of the Board by a vote of a majority of the
total number of the directors, or at any meeting or stockholders, duly called
and held, by a majority of the stock represented at such meeting.
<PAGE>
I, __________________, CERTIFY that I am the duly appointed Secretary of
Marine Midland Bank and, as such officer, have access to its official records
and the foregoing By-Laws are the By-Laws of the Bank, and all of them are now
lawfully in force and effect.
IN TESTIMONY WHEREOF, I have hereunto affixed my official signature and
the seal of the Bank, in New York, on ___________________________.
Secretary
[SEAL]
<PAGE>
EXHIBIT T1A(vi)
Securities and Exchange Commission
Washington, D.C. 20549
Dear Sirs:
Pursuant to Section 321(b) of the Trust Indenture Act of 1939 and subject
to the qualifications and limitation of 321(b) and the other provisions of the
Trust Indenture Act of 1939, the undersigned Marine Midland Bank consents that
reports of examination by Federal, State, Territorial or District authorities
may be furnished by such authorities to the Commission upon request therefor.
Yours very truly,
MARINE MIDLAND BANK
By:/s/ Metin Caner
------------------------
Metin Caner
Assistant Vice President
Attest:
By:
Eileen M. Hughes
Corporate Trust Officer
<PAGE>
EXHIBIT T1A(vii)
REPORT OF CONDITION
Consolidated Report of Condition of
Marine Midland Bank of Buffalo, New
York and Foreign and Domestic Subsid-
iaries, a member of the Federal Re-
serve System, at the close of bus-
iness on December 31, 1993, pub-
lished in accordance with a call made
by the Federal Reserve Bank of this
District pursuant to the provisions of
the Federal Reserve Act.
<TABLE>
<CAPTION>
(Dollar Amounts in
Thousands)
ASSETS
<S> <C> <C>
Cash and balance due from
depositary institutions:
Noninterest-bearing balances
and currency and coin................................. $ 1,071,645
Interest-bearing balances.................................. 1,492,007
Securities................................................. 1,919,704
Federal funds sold and
securities purchased under
agreements to resell in
domestic offices of the
bank and of its Edge and
Agreement subsidiaries, and
in IBF's
Federal funds sold.................................... 357,000
Securities purchased
under agreements to
resell................................................ 593,002
Loans and lease financing
receivables:
Loans and leases, net of
unearned income...................... 9,930,891
LESS: Allowance for loan
and lease losses..................... 342,089
LESS: Allocated transfer
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
risk reserve......................... 0
Loans and lease, net of unearned
income, allowance, and reserve...................... 9,588,802
Assets held in trading accounts............................ 1,615,072
Premises and fixed assets
(including capitalized leases)...................... 193,194
Other real estate owned.................................... 142,240
Investments in unconsolidated
subsidiaries and associated
companies........................................... 0
Customers' liability to this
bank on acceptances outstanding 15,007
Intangible assets.......................................... 69,056
Other assets............................................... 428,500
-----------
Total assets............................................... 17,485,229
===========
<CAPTION>
LIABILITIES
<S> <C> <C>
Deposits:
In domestic offices................................. 12,377,782
Noninterest-bearing.................. 3,259,659
Interest-bearing..................... 9,118,123
In foreign offices, Edge
and Agreement Subsid-
iaries, and IBF's.................... 1,002,884
Noninterest-bearing.................. 0
Interest-bearing..................... 1,002,884
Federal funds purchased
securities sold under
agreements to repurchase
in domestic offices of
the bank and of its Edge
and Agreement subsidiar-
ies, and in IBF's
Federal funds purchased............................. 1,115,269
Securities sold under
agreements to repurchase............................ 260,530
Demand notes issued to the U.S.
Treasury............................................ 300,000
Other borrowed money....................................... 510,549
Mortgage indebtedness and
obligations under capital-
ized leases......................................... 41,852
Bank's liability on acceptances
</TABLE>
<PAGE>
<TABLE>
<S> <C>
executed and outstanding............................ 17,591
Subordinated notes and
debentures.......................................... 225,000
Other liabilities.......................................... 317,656
-----------
Total Liabilities.......................................... 16,169,113
Limited-Life preferred
stock and related surplus........................... 0
<CAPTION>
EQUITY CAPITAL
Perpetual preferred stock
and related surplus................................. 0
Common Stock............................................... 185,000
Surplus.................................................... 1,182,745
Undivided profits and capital
reserves............................................ (51,629)
LESS: Net unrealized loss
on marketable equity
securities........................................ 0
Cumulative foreign currency
translation adjustments............................. 0
Total equity capital....................................... 1,316,116
-----------
Total
Liabilities, limited-life
preferred stock and equity
capital............................................. 17,485,229
===========
</TABLE>
<PAGE>
I, Gerald A. Ronning, Executive Vice President and Controller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
/s/ Gerald A. Ronning
-----------------
GERALD A. RONNING
We the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
/s/ James H. Cleave
Director
/s/ Bernard J. Kennedy
Director
/s/ Northrup R. Knox
Director
