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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported) May 30, 1997
BRIGGS & STRATTON CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Wisconsin
(State or Other Jurisdiction of Incorporation)
1-1370 39-0182330
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(Commission File Number) (I.R.S. Employer Identification No.)
12301 West Wirth Street, Wauwatosa, Wisconsin 53222
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(Address of Principal Executive Offices) (Zip Code)
(414) 259-5333
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(Registrant's Telephone Number, Including Area Code)
Not Applicable
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(Former Name or Former Address, if Changed Since Last Report)
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ITEM 5. OTHER EVENTS.
On April 16, 1997, Briggs & Stratton Corporation (the "Company") filed
its Registration Statement No. 333-25271 on Form S-3 with the Securities and
Exchange Commission (the "SEC") for registration of $175,000,000 aggregate
principal amount of its debt securities which may be sold from time to time
pursuant to rule 415 promulgated under the Securities Act of 1933, as amended.
The Registration Statement, as amended, was declared effective by the SEC on
May 29, 1997. On June 4, 1997, the Company sold $100,000,000 aggregate
principal amount of its 7 1/4% unsecured and unsubordinated notes due September
15, 2007 (the "Note Offering") pursuant to the Registration Statement. The
description of the Note Offering is qualified in its entirety by reference to
the exhibits filed herewith.
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
A list of exhibits filed herewith is contained in the Exhibit Index,
which is incorporated herein by reference.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
BRIGGS & STRATTON CORPORATION
Dated: June 16, 1997 By: /s/ Robert H. Eldridge
--------------------------
Name: Robert H. Eldridge
Title: Executive Vice President and
Chief Executive Officer,
Secretary-Treasurer
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EXHIBIT INDEX
EXHIBIT NO. DOCUMENT DESCRIPTION
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4.1 Indenture dated as of June 4, 1997 between Briggs & Stratton
Corporation and Bank One, N.A., as Trustee.
4.2 Form of 7 1/4% Note due September 15, 2007 of Briggs &
Stratton Corporation issued pursuant to the Indenture dated as
of June 4, 1997 between Briggs & Stratton Corporation and Bank
One, N.A., as Trustee.
4.3 Resolutions of the Board of Directors of Briggs & Stratton
Corporation authorizing the public offering of debt securities
of Briggs & Stratton Corporation in an aggregate principal
amount of up to $175,000,000.
4.4 Actions of the Authorized Officers of Briggs & Stratton
Corporation authorizing the issuance of $100,000,000 aggregate
principal amount of 7 1/4% Notes due September 15, 2007.
4.5 Officers' Certificate and Company Order of Briggs & Stratton
Corporation executed in conjunction with the issuance of
$100,000,000 aggregate principal amount of 7 1/4% Notes due
September 15, 2007.
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EXHIBIT 4.1
========================
BRIGGS & STRATTON CORPORATION
TO
BANK ONE, N.A.
Trustee
_________
INDENTURE
Dated as of June 4, 1997
Debt Securities
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Briggs & Stratton Corporation
Certain Sections of this Indenture relating to
Sections 3.10 through 3.18, inclusive, of the
Trust Indenture Act of 1939, as amended:
<TABLE>
<CAPTION>
Provision of Trust
Indenture Act of 1939,
as amended Indenture Section
<S> <C>
Section 310(a)(1) .............................. 6.9
(a)(2) .............................. 6.9
(a)(3) .............................. Not Applicable
(a)(4) .............................. Not Applicable
(b) .............................. 6.8, 6.10
(c) .............................. Not Applicable
Section 311(a) .............................. 6.13
(b) .............................. 6.13
(c) .............................. Not Applicable
Section 312(a) .............................. 7.1, 7.2(a)
(b) .............................. 7.2(b)
(c) .............................. 7.2(c)
Section 313(a) .............................. 7.3(a)
(b) .............................. 7.3(a)
(c) .............................. 7.3(a)
(d) .............................. 7.3(b)
Section 314(a) .............................. 7.4
(a)(4) .............................. 1.1, 10.4
(b) .............................. Not Applicable
(c)(1) .............................. 1.2
(c)(2) .............................. 1.2
(c)(3) .............................. Not Applicable
(d) .............................. Not Applicable
(e) .............................. 1.2
(f) .............................. 1.2
Section 315(a) .............................. 6.1
(b) .............................. 6.2
(c) .............................. 6.1
(d) .............................. 6.1
(e) .............................. 5.14
Section 316(a) .............................. 1.1
(a)(1)(A) .............................. 5.2, 5.12
(a)(1)(B) .............................. 5.13
(a)(2) .............................. Not Applicable
(b) .............................. 5.8
(c) .............................. 1.4(c)
Section 317(a)(1) .............................. 5.3
(a)(2) .............................. 5.4
(b) .............................. 10.3
Section 318(a) .............................. 1.7
</TABLE>
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
RECITALS OF THE COMPANY ..................................................... 1
ARTICLE I
Definitions and Other Provisions
of General Application ........................... 1
Section 1.1 Definitions ............................................ 1
Act ......................................................... 2
Affiliate ................................................... 2
Attributable Debt ........................................... 2
Authenticating Agent ........................................ 3
Board of Directors .......................................... 3
Board Resolution ............................................ 3
Book-Entry Security ......................................... 3
Business Day ................................................ 3
Capital Lease Obligations ................................... 3
"capital stock" or "stock ................................... 3
Commission .................................................. 3
Company ..................................................... 3
"Company Request" or "Company Order" ........................ 4
Consolidated Net Tangible Assets ............................ 4
Corporate Trust Office ...................................... 4
corporation ................................................. 4
covenant defeasance ......................................... 4
CUSIP ....................................................... 4
default ..................................................... 4
Defaulted Interest .......................................... 4
defeasance .................................................. 4
Depository .................................................. 4
Event of Default ............................................ 4
Funded Debt ................................................. 4
Holder ...................................................... 5
</TABLE>
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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<TABLE>
<S> <C>
Indebtedness ................................................ 5
Indenture ................................................... 5
Intangible Assets ........................................... 5
interest .................................................... 5
Interest Payment Date ....................................... 5
Liens ....................................................... 5
mandatory sinking fund payment .............................. 5
Maturity .................................................... 5
Notice of Default ........................................... 6
Officers' Certificate ....................................... 6
Opinion of Counsel .......................................... 6
optional sinking fund payment ............................... 6
Original Issue Discount Security ............................ 6
Outstanding ................................................. 6
Paying Agent ................................................ 7
Person ...................................................... 7
Place of Payment ............................................ 7
Predecessor Security ........................................ 7
Principal Property .......................................... 7
Redemption Date ............................................. 8
Redemption Price ............................................ 8
Regular Record Date ......................................... 8
Restricted Subsidiary ....................................... 8
sale and leaseback transaction .............................. 8
Secured Funded Debt ......................................... 8
Securities .................................................. 8
"Security Register" and "Security Registrar" ................ 8
Special Record Date ......................................... 8
Stated Maturity ............................................. 8
Subsidiary .................................................. 8
Trust Indenture Act ......................................... 8
Trustee ..................................................... 9
Unrestricted Subsidiary ..................................... 9
U.S. Government Obligations ................................. 9
Vice President .............................................. 9
Yield to Maturity ........................................... 9
</TABLE>
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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<TABLE>
<S> <C>
Section 1.2 Compliance Certificates and Opinions ........................... 9
Section 1.3 Form of Documents Delivered to Trustee ......................... 10
Section 1.4 Acts of Holders; Record Dates .................................. 11
Section 1.5 Notices, Etc. to Trustee and Company ........................... 12
Section 1.6 Notice to Holders; Waiver ...................................... 12
Section 1.7 Conflict with Trust Indenture Act .............................. 12
Section 1.8 Effect of Headings and Table of Contents 13
Section 1.9 Successors and Assigns ......................................... 13
Section 1.10 Separability Clause ........................................... 13
Section 1.11 Benefits of Indenture ......................................... 13
Section 1.12 Governing Law ................................................. 13
Section 1.13 Legal Holidays ................................................ 13
ARTICLE II
Security Forms .............................. 14
Section 2.1 Forms Generally ................................................ 14
Section 2.2 Form of Face of Security ....................................... 14
Section 2.3 Form of Reverse of Security .................................... 16
Section 2.4 Additional Provisions Required in Book-Entry Security .......... 20
Section 2.5 Form of Trustee's Certificate of Authentication ................ 21
ARTICLE III
The Securities .............................. 21
Section 3.1 Amount Unlimited; Issuable in Series ........................... 23
Section 3.2 Denominations .................................................. 23
Section 3.3 Execution, Authentication, Delivery and Dating ................. 23
Section 3.4 Temporary Securities ........................................... 25
Section 3.5 Registration, Registration of Transfer and Exchange ............ 25
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities ............... 27
Section 3.7 Payment of Interest; Interest Rights Preserved ................. 28
Section 3.8 Persons Deemed Owners .......................................... 29
Section 3.9 Cancellation ................................................... 29
Section 3.10 Computation of Interest ....................................... 29
Section 3.11 CUSIP Numbers ................................................. 30
</TABLE>
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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<TABLE>
<S> <C>
ARTICLE IV
Satisfaction and Discharge ........................ 30
Section 4.1 Satisfaction and Discharge of Indenture ........................ 30
Section 4.2 Application of Trust Money ..................................... 31
ARTICLE V
Remedies ................................. 31
Section 5.1 Events of Default .............................................. 31
Section 5.2 Acceleration of Maturity; Rescission and Annulment ............. 33
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee. 34
Section 5.4 Trustee May File Proofs of Claim ............................... 35
Section 5.5 Trustee May Enforce Claims Without Possession of Securities .... 35
Section 5.6 Application of Money Collected ................................. 35
Section 5.7 Limitation on Suits ............................................ 36
Section 5.8 Unconditional Right of Holders to Receive Principal, Premium
and Interest ................................................ 37
Section 5.9 Restoration of Rights and Remedies ............................. 37
Section 5.10 Rights and Remedies Cumulative ................................ 37
Section 5.11 Delay or Omission Not Waiver .................................. 37
Section 5.12 Control by Holders ............................................ 37
Section 5.13 Waiver of Past Defaults ....................................... 38
Section 5.14 Undertaking for Costs ......................................... 38
Section 5.15 Waiver of Stay or Extension Laws .............................. 38
ARTICLE VI
The Trustee ................................ 39
Section 6.1 Certain Duties and Responsibilities ............................ 39
Section 6.2 Notice of Defaults ............................................. 39
Section 6.3 Certain Rights of Trustee ...................................... 39
Section 6.4 Not Responsible for Recitals or Issuance of Securities ......... 40
Section 6.5 May Hold Securities ............................................ 40
Section 6.6 Money Held in Trust ............................................ 41
Section 6.7 Compensation and Reimbursement ................................. 41
Section 6.8 Disqualification; Conflicting Interests ........................ 41
</TABLE>
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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<TABLE>
<S> <C>
Section 6.9 Corporate Trustee Required; Eligibility ....................... 41
Section 6.10 Resignation and Removal; Appointment of Successor ............ 42
Section 6.11 Acceptance of Appointment by Successor ....................... 43
Section 6.12 Merger, Conversion, Consolidation or Succession to Business .. 44
Section 6.13 Preferential Collection of Claims Against Company ............ 45
Section 6.14 Appointment of Authenticating Agent .......................... 45
ARTICLE VII
Holders' Lists and Reports by Trustee and Company ............ 47
Section 7.1 Company to Furnish Trustee Names and Addresses of Holders ..... 47
Section 7.2 Preservation of Information; Communications to Holders ........ 47
Section 7.3 Reports by Trustee ............................................ 47
Section 7.4 Reports by Company ............................................ 48
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease .......... 48
Section 8.1 Company May Consolidate, Etc. Only on Certain Terms ........... 48
Section 8.2 Successor Substituted ......................................... 49
ARTICLE IX
Supplemental Indentures ......................... 50
Section 9.1 Supplemental Indentures Without Consent of Holders ............ 50
Section 9.2 Supplemental Indentures with Consent of Holders ............... 51
Section 9.3 Execution Of Supplemental Indentures .......................... 52
Section 9.4 Effect of Supplemental Indentures ............................. 52
Section 9.5 Conformity with Trust Indenture Act ........................... 52
Section 9.6 Reference in Securities to Supplemental Indentures ............ 53
ARTICLE X
Covenants ................................ 53
Section 10.1 Payment of Principal, Premium and Interest ................... 53
Section 10.2 Maintenance of Office or Agency .............................. 53
Section 10.3 Money for Securities Payments to Be Held in Trust ............ 54
</TABLE>
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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<TABLE>
<S> <C>
Section 10.4 Statement by Officers as to Default ........................... 55
Section 10.5 Existence ..................................................... 55
Section 10.6 Restrictions on Secured Funded Debt ........................... 55
Section 10.7 Limitation on Sales and Leasebacks ............................ 57
Section 10.8 Restrictions on Funded Debt of Restricted Subsidiaries ........ 58
Section 10.9 Waiver of Certain Covenants ................................... 59
ARTICLE XI
Redemption of Securities ......................... 59
Section 11.1 Applicability of Article ...................................... 59
Section 11.2 Election to Redeem; Notice to Trustee ......................... 59
Section 11.3 Selection by Trustee of Securities to Be Redeemed ............. 60
Section 11.4 Notice of Redemption .......................................... 60
Section 11.5 Deposit of Redemption Price ................................... 61
Section 11.6 Securities Payable on Redemption Date ......................... 61
Section 11.7 Securities Redeemed in Part ................................... 61
ARTICLE XII
Sinking Funds ............................... 62
Section 12.1 Applicability of Article ...................................... 62
Section 12.2 Satisfaction of Sinking Fund Payments with Securities ......... 62
Section 12.3 Redemption of Securities for Sinking Fund ..................... 63
ARTICLE XIII
Defeasance and Covenant Defeasance .................... 63
Section 13.1 Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance...................... 63
Section 13.2 Defeasance and Discharge ...................................... 63
Section 13.3 Covenant Defeasance ........................................... 64
Section 13.4 Conditions to Defeasance or Covenant Defeasance ............... 64
Section 13.5 Deposited Money and U.S. Government Obligations to be Held
in Trust; Other Miscellaneous Provision ............... 66
Section 13.6 Reinstatement ................................................. 67
</TABLE>
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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INDENTURE, dated as of June 4, 1997 between Briggs & Stratton
Corporation, a corporation duly organized and existing under the laws of the
State of Wisconsin (herein called the "Company"), having its principal office at
12301 West Wirth Street, Wauwatosa, Wisconsin 53222, and Bank One, N.A., a
national banking institution, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured and
unsubordinated debentures, notes or other evidences of indebtedness to be issued
in one or more series as in this Indenture provided (herein called the
"Securities").
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE I
Definitions and Other Provisions
of General Application
Section 1.1 Definitions.
For all purposes of this Indenture, 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, and, except as otherwise herein expressly
provided, the term "generally accepted accounting
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principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted at the date of such computation; and
(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.
"Act," when used with respect to any Holder, has the meaning
specified in Section 1.4.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" means as to any particular lease under which
either the Company or any Restricted Subsidiary is at the time liable as lessee
for a term of more than 12 months and at any date as of which the amount thereof
is to be determined, the total net obligations of the lessee for rental payments
during the remaining term of the lease (including any period for which such
lease has been extended or may, at the option of the lessor, be extended)
discounted from the respective due dates thereof to such determination date at a
rate per annum equivalent to the greater of (a) the weighted-average Yield to
Maturity of the Outstanding Securities, such average being weighted by the
principal amount of the Outstanding Securities of each series or, in the case of
Original Issue Discount Securities, such amount to be the principal amount of
such outstanding Original Issue Discount Securities that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the maturity thereof pursuant to this Indenture and (b) the interest rate
inherent in such lease (as determined in good faith by the Company), both to be
compounded semi-annually. The net total obligations of the lessee for rental
payments under any such lease for any such period shall be the aggregate amount
of the rent payable by the lessee with respect to such period after excluding
amounts required to be paid on account of maintenance and repairs, services,
insurance, taxes, assessments, water rates and similar charges and contingent
rents (such as those based on sales or monetary inflation). If any lease is
terminable by the lessee upon the payment of a penalty and under the terms of
the lease the termination right is not exercisable until after the determination
date and the amount of such penalty discounted to the determination date as
provided above is less than the net amount of rentals payable after the time as
of which such termination could occur (the "termination time") discounted to the
determination date as provided above, then such discounted penalty amount shall
be used instead of such discounted amount of net rentals payable after the
termination time in calculating the Attributable Debt for such lease. If any
lease is terminable by the lessee upon the payment of a penalty and such
termination right is exercisable on the determination date and the amount of the
net rentals payable under such lease after the determination date discounted to
the determination date as provided above is
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greater than the amount of such penalty, the "Attributable Debt" for such lease
as of such determination date shall be equal to the amount of such penalty.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Book-Entry Security" means a Security in the form prescribed in
Sections 2.2 through 2.4 evidencing all or part of a series of Securities,
issued to the Depository for such series or its nominee, and registered in the
name of such Depository or nominee.
"Business Day," when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment are authorized or obligated
by law or executive order to close.
"Capital Lease Obligations" of either the Company or any Restricted
Subsidiary means the obligations of such Person to pay rent or other amounts
under any lease of (or other arrangement conveying the right to use) real
property, the term of which extends beyond 12 months, which obligations are
required to be classified and accounted for as a capital lease on a balance
sheet of such Person under generally accepted accounting principles (including
Statement No. 13 of Financial Accounting Standards Board) and, for the purposes
of this Indenture, the amount of such obligation shall be the capitalized amount
thereof, determined in accordance with generally accepted accounting principles
(including such Statement No. 13).
"capital stock" or "stock" includes capital stock, shares of
beneficial interests and limited partnership interests.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Company" means the corporation named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
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"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its
President, its General Counsel or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Controller or an Assistant Controller, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Consolidated Net Tangible Assets" means, at any date, the total
assets appearing on the most recent consolidated balance sheet of the Company
and its Restricted Subsidiaries as at the end of the fiscal quarter of the
Company ending not more than 135 days prior to such date, prepared in accordance
with generally accepted accounting principles, less (a) all current liabilities
(due within one year) as shown on such balance sheet, (b) applicable reserves,
(c) investments in and advances to Unrestricted Subsidiaries that are
consolidated on the consolidated balance sheet of the Company and its
Subsidiaries, and (d) Intangible Assets and liabilities relating thereto.
"Corporate Trust Office" means the principal office of the Trustee
in Columbus, Ohio at which at any particular time its corporate trust business
shall be administered, which currently is located at 100 East Broad Street,
Columbus, Ohio 43215.
"corporation" means a corporation, association, company, limited
partnership, partnership, joint-stock company, limited liability company or
business trust.
"covenant defeasance" has the meaning specified in Section 13.3.
"CUSIP" has the meaning specified in Section 3.11.
"default" has the meaning specified in Section 6.2.
"Defaulted Interest" has the meaning specified in Section 3.7.
"defeasance" has the meaning specified in Section 13.2.
"Depository" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Book-Entry
Securities, the Person designated as Depository for such series by the Company
pursuant to Section 3.1, initially The Depository Trust Company, its nominees
and their respective successors, which Person shall be a clearing agency
registered under the Securities Exchange Act of 1934, as amended.
"Event of Default" has the meaning specified in Section 5.1.
"Funded Debt" means (i) any indebtedness of the Company or a
Restricted Subsidiary maturing more than 12 months after the time of computation
thereof, (ii) guarantees of Funded Debt or of dividends of others (except
guarantees in connection with the sale or discount of accounts receivable, trade
acceptances and other paper arising in the ordinary course of business), (iii)
in the case of any Restricted Subsidiary, all preferred stock having mandatory
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redemption provisions of such Restricted Subsidiary as reflected on such
Restricted Subsidiary's balance sheet prepared in accordance with U.S. generally
accepted accounting principles, and (iv) all Capital Lease Obligations.
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"Indebtedness" means, at any date, without duplication, (i) all
obligations for borrowed money of the Company or a Restricted Subsidiary or any
other indebtedness of the Company or a Restricted Subsidiary, evidenced by
bonds, debentures, notes or other similar instruments, and (ii) Funded Debt.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 3.1.
"Intangible Assets" means, at any date, the value (net of any
applicable reserves), as shown on or reflected in the most recent consolidated
balance sheet of the Company and its Restricted Subsidiaries as at the end of
the fiscal quarter of the Company ending not more than 135 days prior to such
date, prepared in accordance with generally accepted accounting principles, of:
(i) all trade names, trademarks, licenses, patents, copyrights, service marks,
goodwill and other like intangibles; (ii) organizational and development costs;
(iii) deferred charges (other than prepaid items, such as insurance, taxes,
interest, commissions, rents, pensions, compensation and similar items and
tangible assets being amortized); and (iv) unamortized debt discount and
expense, less unamortized premium.
"interest," when used with respect to an Original Issue Discount
Security which 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.
"Liens" means such pledges, mortgages, security interests and other
liens on any Principal Property of the Company or a Restricted Subsidiary which
secure Secured Funded Debt.
"mandatory sinking fund payment" has the meaning specified in
Section 12.1.
"Maturity," when used with respect to any Security, means the date
on which the principal of such Security or an installment of principal becomes
due and payable as therein or
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herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Notice of Default" has the meaning specified in Section 5.1.
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, the President, the General Counsel or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Controller or an Assistant Controller,
the Secretary or an Assistant Secretary, of the Company, and delivered to the
Trustee. One of the officers signing an Officers' Certificate given pursuant to
Section 10.4 shall be the principal executive, financial or accounting officer
of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
an employee of or counsel for the Company, and who shall be acceptable to the
Trustee.
"optional sinking fund payment" has the meaning specified in
Section 12.1.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 5.2.
"Outstanding," when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided, that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor satisfactory
to the Trustee has been made;
(iii) Securities which have been paid pursuant to Section 3.6 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 to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid obligations
of the Company; and
(iv) Securities that have been defeased pursuant to Section 13.2;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice,
6
<PAGE> 15
consent or waiver hereunder, (i) the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding shall be the amount of
the principal thereof that would be due and payable as of the date of such
determination upon acceleration of the Maturity thereof pursuant to Section 5.2,
(ii) the principal amount of a Security denominated in one or more foreign
currencies or currency units shall be the U.S. dollar equivalent, determined in
the manner provided as contemplated by Section 3.1 on the date of original
issuance of such Security, of the principal amount (or, in the case of an
Original Issue Discount Security, the U.S. dollar equivalent on the date of
original issuance of such Security of the amount determined as provided in (i)
above) of such Security, and (iii) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which 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 of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 3.1.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.6 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means any manufacturing plant or foundry
located in the United States of America and owned and operated by the Company or
any Restricted Subsidiary on or after the date hereof, and any manufacturing
equipment owned by the Company or any Restricted Subsidiary on or after the date
hereof in such manufacturing plant. "Manufacturing equipment" means
manufacturing equipment in such manufacturing plant directly used in the
production of the Company's products and parts and components thereof, and shall
not include office equipment, rolling stock and other equipment not directly
used in the production of the Company's products.
7
<PAGE> 16
"Redemption Date," when used with respect to any Security to be
redeemed, 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 the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 3.1.
"Restricted Subsidiary" means each Subsidiary other than
Unrestricted Subsidiaries.
"sale and leaseback transaction" has the meaning specified in
Section 10.7.
"Secured Funded Debt" means Funded Debt which is secured by any
pledge of, or mortgage, security interest or other lien on any (i) Principal
Property (whether owned on the date hereof or hereafter acquired or created),
(ii) shares of stock owned by the Company or a Subsidiary in a Restricted
Subsidiary or (iii) indebtedness of a Restricted Subsidiary.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 3.7.
"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 as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means any corporation of which at least a majority of
the outstanding stock, which under ordinary circumstances (not dependent upon
the happening of a contingency) has voting power to elect a majority of the
board of directors of such corporation (or similar management body), is owned
directly or indirectly by the Company or by one or more Subsidiaries of the
Company, or by the Company and one or more Subsidiaries.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that if the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
8
<PAGE> 17
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Unrestricted Subsidiary" means Subsidiaries designated as
Unrestricted Subsidiaries from time to time by the Board of Directors of the
Company; provided, however, that the Board of Directors of the Company (i) shall
not designate as an Unrestricted Subsidiary any Subsidiary of the Company that
owns any Principal Property or any stock of a Restricted Subsidiary, (ii) shall
not continue the designation of any Subsidiary of the Company as an Unrestricted
Subsidiary at any time that such Subsidiary owns any Principal Property, and
(iii) shall not, nor shall it cause or permit any Restricted Subsidiary to,
transfer or otherwise dispose of any Principal Property to any Unrestricted
Subsidiary (unless such Unrestricted Subsidiary shall in connection therewith be
redesignated as a Restricted Subsidiary and any pledge, mortgage, security
interest or other lien arising in connection with any Indebtedness of such
Unrestricted Subsidiary so redesignated does not extend to such Principal
Property (unless the existence of such pledge, mortgage, security interest or
other lien would otherwise be permitted under this Indenture)).
"U.S. Government Obligations" has the meaning specified in Section
13.4.
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Yield to Maturity" means the yield to maturity, calculated at the
time of issuance of a series of Securities or, if applicable, at the most recent
redetermination of interest on such series and calculated in accordance with
generally accepted financial practice.
Section 1.2 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall furnish
to the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture. In the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, however, no
additional certificate or opinion need be furnished.
9
<PAGE> 18
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or 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 the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
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<PAGE> 19
Section 1.4 Acts of Holders; Record Dates.
(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; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.1) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(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 a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders of Securities of any series entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action, or to
vote on any action, authorized or permitted to be given or taken by Holders of
Securities of such series. If not set by the Company prior to the first
solicitation of a Holder of Securities of such series made by any Person in
respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 7.1) prior to such first solicitation or vote, as the case
may be. With regard to any record date for action to be taken by the Holders of
one or more series of Securities, only the Holders of Securities of such series
on such date (or their duly designated proxies) shall be entitled to give or
take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of 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 or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
11
<PAGE> 20
Section 1.5 Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Capital Markets Client Service Group, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument, Attention:
General Counsel, or at any other address previously furnished in writing
to the Trustee by the Company.
Section 1.6 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) 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 (if any), and not earlier than the earliest date
(if any), prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. 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, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made as shall be satisfactory to the Trustee
shall constitute a sufficient notification for every purpose hereunder.
Section 1.7 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
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<PAGE> 21
Section 1.8 Effect of Headings and Table of Contents.
The Article and Section headings herein, the reconciliation and tie
with certain provisions of the Trust Indenture Act, and the Table of Contents
are for convenience only and shall not affect the construction hereof.
Section 1.9 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 1.10 Separability Clause.
In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
Section 1.11 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
Section 1.12 Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to the conflict of laws provisions thereof.
Section 1.13 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities (other than a provision of the Securities of any series which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) 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,
however, 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.
13
<PAGE> 22
ARTICLE II
Security Forms
Section 2.1 Forms Generally.
The Securities of each series shall be in substantially the form
set forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 3.3 for the authentication and delivery of such
Securities.
The Trustee's certificate of authentication shall be in substantially
the form set forth in Section 2.5.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
Section 2.2 Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
Briggs & Stratton Corporation
..........................
No. ......... $ ..........
CUSIP No............
Briggs & Stratton Corporation, a corporation duly organized and
existing under the laws of the State of Wisconsin (herein called the "Company,"
which term includes any
14
<PAGE> 23
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to .............................., or
registered assigns, the principal sum of .................... Dollars on
......................... [if the Security is to bear interest prior to
Maturity, insert --, and to pay interest thereon from ......... or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually on ........... and ............ in each year, commencing
................, at the rate of .....% per annum, until the principal hereof
is paid or made available for payment [if applicable, insert -- , and (to the
extent that the payment of such interest shall be legally enforceable) at the
rate of .......% per annum on any overdue principal and premium and on any
overdue installment of interest.] The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the ........... or .........
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert
- -- The principal of this Security shall not bear interest except in the case of
a default in payment of principal upon acceleration, upon redemption or at
Stated Maturity and in such case the overdue principal of this Security shall
bear interest at the rate of ........% per annum (to the extent that the payment
of such interest shall be legally enforceable), which shall accrue from the date
of such default in payment to the date payment of such principal has been made
or duly provided for. Interest on any overdue principal shall be payable on
demand. Any such interest on any overdue principal that is not so paid on
demand shall bear interest at the rate of ........% per annum (to the extent
that the payment of such interest shall be legally enforceable), which shall
accrue from the date of such demand for payment to the date payment of such
interest has been made or duly provided for, and such interest shall also be
payable on demand.]
Payment of the principal of (and premium, if any) and [if
applicable, insert -- any such] interest on this Security will be made at the
office or agency of the Company maintained for that purpose in New York, New
York in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts [if applicable,
insert --; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register].
15
<PAGE> 24
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
BRIGGS & STRATTON CORPORATION
Dated: ______________
By:_____________________
Attest:
....................
Section 2.3 Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of
the Company (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of .............. (herein called the
"Indenture"), between the Company and ______________________], as Trustee
(herein called the "Trustee," which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [, limited in aggregate principal amount to
$.............].
[If applicable, insert -- The Securities of this series are subject
to redemption upon not less than 30 days' notice by mail, [if applicable, insert
- -- (1) on ........ in any year commencing with the year ..... and ending with
the year ...... through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [on
or after ..........., 19..], as a whole or in part, at the election of the
Company, at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [on or before .........., ___%, and if redeemed]
during the 12-month period beginning ............... of the years indicated,
16
<PAGE> 25
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
- ---- ---------- ---- ----------
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to ...... % of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert -- The Securities of this series are subject
to redemption upon not less than 30 days' notice by mail, (1) on ..............
in any year commencing with the year ..... and ending with the year .....
through operation of the sinking fund for this series at the Redemption Prices
for redemption through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below, and (2) at any time [on
or after ........], as a whole or in part, at the election of the Company, at
the Redemption Prices for redemption otherwise than through operation of the
sinking fund (expressed as percentages of the principal amount) set forth in the
table below: If redeemed during the 12-month period beginning ............. of
the years indicated,
17
<PAGE> 26
<TABLE>
<CAPTION>
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
- ---- ----------------- ---------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to
..........., redeem any Securities of this series as contemplated by [Clause (2)
of] the preceding paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of moneys borrowed having
an interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than .....% per annum.]
[The sinking fund for this series provides for the redemption on
.................. in each year beginning with the year ............... and
ending with the year ................ of [not less than $.......... ("mandatory
sinking fund") and not more than] $............. aggregate principal amount of
Securities of this series. Securities of this series acquired or redeemed by
the Company otherwise than through [mandatory] sinking fund payments may be
credited against subsequent [mandatory] sinking fund payments otherwise required
to be made [in the inverse order in which they become due].]
[If the Security is subject to redemption, insert -- In the event
of redemption of this Security in part only, a new Security or Securities of
this series and of like tenor for the
18
<PAGE> 27
unredeemed portion hereof will be issued in the name of the Holder hereof upon
the cancellation hereof.]
[If the Security is not an Original Issue Discount Security, insert
- -- If an Event of Default with respect to Securities of this series shall occur
and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.]
[If the Security is an Original Issue Discount Security, insert --
If an Event of Default with respect to Securities of this series shall occur and
be continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal and overdue interest (in each case
to the extent that the payment of such interest shall be legally enforceable),
all of the Company's obligations in respect of the payment of the principal of
and interest, if any, on the Securities of this series shall terminate.]
[The Indenture contains provisions for defeasance at any time of
[the entire indebtedness of this Security or] certain restrictive covenants and
the related Events of Default with respect to this Security [, in each case]
upon compliance with certain conditions set forth therein.]
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
premium and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registerable in the Security
Register, upon surrender of this
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Security for registration of transfer at the office or agency of the Company in
any place where the principal of and any premium and interest on this Security
are payable, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities of this series and of like tenor, of
authorized denominations and for the same Stated Maturity and aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $.......... and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
Interest on this Security shall be computed on the basis of [a
360-day year of twelve 30-day months][the actual number of days elapsed and a
360-day year].
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
This Security shall be governed by and construed in accordance with
the laws of the State of New York without giving effect to the conflict of laws
provisions thereof.
Section 2.4 Additional Provisions Required in Book-Entry Security.
Any Book-Entry Security issued hereunder shall, in addition to the
provisions contained in Sections 2.2 and 2.3, bear a legend in substantially the
following form:
"This Security is a Book-Entry Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depository or a nominee of a Depository. This Security is exchangeable
for Securities registered in the name of a person other than the
Depository or its nominee only in the limited circumstances described in
the Indenture and may not be transferred except as a whole by the
Depository to a nominee of the Depository or by a
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nominee of the Depository to the Depository or another nominee of
the Depository."
Section 2.5 Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
BANK ONE, N.A.
As Trustee
By:________________________________
Authorized Signatory
ARTICLE III
The Securities
Section 3.1 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 3.3,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series;
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.7
and except for any Securities which, pursuant to Section 3.3, are deemed
never to have been authenticated and delivered hereunder);
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(3) the Person to whom any interest on a Security of the series
shall be payable, if other than 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;
(4) the date or dates on which the principal of the Securities of
the series is payable;
(5) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method of calculating such rate or rates
of interest, the date or dates from which such interest shall accrue,
the Interest Payment Dates on which any such interest shall be payable
and the Regular Record Date for any interest payable on any Interest
Payment Date;
(6) the place or places where the principal of and any premium and
interest on Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or
periods within which, the price or prices at which and the terms and
conditions upon which Securities of the series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(10) the currency, currencies or currency units in which payment
of the principal of and any premium and interest on any Securities of
the series shall be payable if other than the currency of the United
States of America and the manner of determining the equivalent thereof
in the currency of the United States of America for purposes of the
definition of "Outstanding" in Section 1.1;
(11) if the amount of payments of principal of or any premium or
interest on any Securities of the series may be determined with
reference to an index or formula, the manner in which such amounts shall
be determined;
(12) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the
Company or a Holder thereof, in one or more currencies or currency units
other than that or those in which the Securities are stated to be
payable, the currency, currencies or currency units in which payment of
the principal
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of and any premium and interest on Securities of such series as to which
such election is made shall be payable, and the periods within which and
the terms and conditions upon which such election is to be made;
(13) the application, if any, of Section 13.2 or 13.3 to the
Securities of the series;
(14) whether the Securities of the series shall be issued in whole
or in part in the form of one or more Book-Entry Securities and, in such
case, the Depository with respect to such Book-Entry Security or
Securities and the circumstances under which any Book-Entry Security may
be registered for transfer or exchange, or authenticated and delivered,
in the name of a Person other than such Depository or its nominee, if
other than as set forth in Section 3.5;
(15) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.2; and
(16) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 3.3) set
forth, or determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
Section 3.2 Denominations.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 3.1. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 3.3 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
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Securities 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.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any Series executed by
the Company to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 2.1 and 3.1, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 6.1) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or pursuant
to Board Resolution as permitted by Section 2.1, that such form has been
established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 3.1, that such terms have
been established in conformity with the provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company enforceable in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the
immediately preceding paragraph, if all Securities of a series are not to be
originally issued at one time, it shall not be necessary to deliver the
Officers' Certificate otherwise required pursuant to Section 3.1 or the Company
Order and Opinion of Counsel otherwise required pursuant to such preceding
paragraph at or prior to the time of authentication of each Security of such
series if such documents are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be issued.
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Unless otherwise provided for in the form of Security, each
Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security
a certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 3.9, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
Section 3.4 Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued 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.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company 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 series the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
the same Stated Maturity and aggregate principal amount and of like tenor.
Until so exchanged the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
of such series and tenor.
Section 3.5 Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively 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 Securities and of transfers of Securities. The Trustee is
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<PAGE> 34
hereby appointed "Security Registrar" for the purpose of registering Securities
and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series as
designated pursuant to Section 10.2, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same series, of any authorized
denominations and of the same Stated Maturity and aggregate principal amount and
of like tenor.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of the same Stated Maturity and aggregate principal amount and
of like tenor, upon surrender of the Securities to be exchanged at such office
or agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or 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 3.4, 9.6 or 11.7 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
11.3 and ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part.
Notwithstanding the foregoing, any Book-Entry Security shall be
exchangeable pursuant to this Section 3.5 for Securities registered in the name
of Persons other than the Depository for such Security or its nominee only if
(i) such Depository notifies the Company
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<PAGE> 35
that it is unwilling or unable to continue as Depository for such Book-Entry
Security or if at any time such Depository ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, (ii) the
Company executes and delivers to the Trustee a Company Order that such
Book-Entry Security shall be so exchangeable or (iii) there shall have occurred
and be continuing an Event of Default with respect to the Securities. Any
Book-Entry Security that is exchangeable pursuant to the preceding sentence
shall be exchangeable for Securities registered in such names as such Depository
shall direct.
Notwithstanding any other provision in this Indenture, a Book-Entry
Security may not be transferred except as a whole by the Depository with respect
to such Book-Entry Security to a nominee of such Depository or by a nominee of
such Depository to such Depository or another nominee of such Depository.
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) 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 the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and the same Stated Maturity and aggregate principal amount
and of like tenor and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security 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.
Upon the issuance of any new Security under this Section, the
Company may require the payment by the holder of such mutilated, destroyed, lost
or stolen Security of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
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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.
Section 3.7 Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 3.1 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the 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 Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Securities of
such series at his address as it appears in the Security Register, not
less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
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(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, 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 3.8 Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of and any
premium and (subject to Section 3.7) any interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Section 3.9 Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be destroyed by the Trustee and the Trustee
shall deliver a certification of destruction to the Company quarterly.
Section 3.10 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
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Section 3.11 CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided, however, that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as contained in any notice
of a redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
ARTICLE IV
Satisfaction and Discharge
Section 4.1 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.6 and (ii)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 10.3) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited
or caused to be deposited with the Trustee as trust funds in trust for
the purpose an amount sufficient to
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pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for principal and
any premium and interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 6.7, the respective
obligations of the Company and the Trustee to any Authenticating Agent under
Section 6.14 and, if money shall have been deposited with the Trustee pursuant
to subclause (B) of clause (1) of this Section, the obligations of the Trustee
under Section 4.2 and the last paragraph of Section 10.3 shall survive.
Section 4.2 Application of Trust Money.
Subject to provisions of the last paragraph of Section 10.3, all
money deposited with the Trustee pursuant to Section 4.1 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE V
Remedies
Section 5.1 Events of Default.
"Event of Default," wherever used herein with respect to Securities
of any series, means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(1) default in the payment of any interest upon any Security of
that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
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(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund or other payment
required pursuant to the terms of a Security of that Series as
established by or pursuant to a Board Resolution as permitted by Section
3.1(8), when and as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of
Securities other than that series, provided that for purposes of this
clause (4) any covenant or agreement on the part of the Company
contained in this Indenture which is not limited to a series of
Securities shall be in respect of all series of Securities), and
continuance of such default or breach for a period of 90 days after
there has been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holder or Holders
of at least 25% in principal amount of the Outstanding Securities of
that series a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding
to be adjudicated a bankrupt or insolvent, or the consent by it to the
entry of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or
the consent by it to the filing of such petition or to the appointment
of or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or of any
substantial part of its property, or the
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making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally
as they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(7) a default or defaults under any mortgage, indenture or
instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness (including this Indenture),
whether such Indebtedness now exists or shall hereafter be created,
which default or defaults shall have resulted in such Indebtedness, in
an aggregate principal amount exceeding $25 million, individually or in
the aggregate, having been declared due and payable prior to the date on
which it would otherwise have become due and payable, without such
Indebtedness having been discharged, or such acceleration having been
rescinded or annulled, or there having been deposited in trust a sum of
money sufficient to discharge in full such Indebtedness, within a period
of 30 days after there shall have been given, by registered mail, to the
Company by the Trustee or to the Company and the Trustee by the Holder
or Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of such series a written notice specifying such
default and requiring the Company to cause such Indebtedness to be
discharged, cause to be deposited in trust a sum sufficient to discharge
in full such Indebtedness or cause such acceleration to be rescinded or
annulled and stating that such notice is a "Notice of Default"
hereunder; provided, however, that, subject to the provisions of
Sections 6.2 and 6.3, the trustee shall not be deemed to have knowledge
of such default unless either (A) the Trustee shall have actual
knowledge of such default or (B) the Trustee shall have received written
notice thereof from the Company, from the holder of any such
Indebtedness or from any trustee under any such mortgage, indenture or
other instrument; or
(8) any event which constitutes an "Event of Default" under the
terms governing Securities of that series established as provided in
Section 3.1.
Section 5.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holder or Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
the Securities of that series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms thereof) of all
of the Securities of that series to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority
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in principal amount of the Outstanding Securities of that series, by written
notice to the Company and the Trustee, may rescind and annul such declaration
and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities
of that series which have become due otherwise than by such
declaration of acceleration and any interest thereon at the rate or
rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues
for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
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If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.4 Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 6.7.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 5.5 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 5.6 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal or any
premium or interest, upon presentation of the
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Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
6.7;
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect
of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal and any premium
and interest, respectively; and
THIRD: To the Company.
Section 5.7 Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
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Section 5.8 Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section 3.7)
any interest on such Security on the Stated Maturity or Maturities expressed in
such Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 5.9 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 3.6, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
Section 5.12 Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding
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for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to the Securities of such series,
provided that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 5.13 Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest
on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article IX cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 5.14 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, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company or the Trustee.
Section 5.15 Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
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law and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VI
The Trustee
Section 6.1 Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided
by the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if 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. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 6.2 Notice of Defaults.
If a default occurs hereunder with respect to Securities of any
series, the Trustee shall give the Holders of Securities of such series notice
of such default as and to the extent provided by the Trust Indenture Act;
provided, however, that in the case of any default of the character specified in
Section 5.1(4) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
Section 6.3 Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
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(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the 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) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent
or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
Section 6.4 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. The
Trustee or any Authenticating Agent shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof. The Trustee
shall not be responsible for any statement made in any prospectus or similar
document used to sell the Securities.
Section 6.5 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 6.8 and 6.13, may otherwise deal with
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the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 6.6 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
Section 6.7 Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such compensation as
shall be agreed to in writing between the Company and the Trustee for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
loss, liability or expense, incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
Section 6.8 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
Section 6.9 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000 and have an office or
agency in New York, New York where Securities may be presented for payment and
for registration of transfer or exchange. If such
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Person publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such Person shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
Section 6.10 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee 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 may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8 after
written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9
and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all securities, or (ii) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Security 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 the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
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(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 6.11. 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 any Series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
6.11, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any Series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 6.11, 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 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
to all Holders of Securities of such series in the manner provided in Section
1.6. Each notice shall include the name of the successor Trustee with respect to
the Securities of such series and the address of its Corporate Trust Office.
Section 6.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so appointed 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
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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 that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) and (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 shall be qualified and
eligible under this Article.
Section 6.12 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
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Section 6.13 Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be subject
to the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
Section 6.14 Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities which shall be authorized to act on
behalf of the Trustee to authenticate Securities of such series issued upon
original issue and upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 3.6, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever reference
is made in this Indenture to the authentication and delivery of Securities by
the Trustee or the Trustee's certificate of authentication, such reference shall
be deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
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provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
BANK ONE, N.A.
As Trustee
By:___________________________
As Authenticating Agent
By:__________________________
Authorized Officer
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ARTICLE VII
Holders' Lists and Reports by Trustee and Company
Section 7.1 Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than May 1 and November 1 in each
year, a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders as of the preceding April 1 or October 1, as the
case may be; and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 7.2 Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 7.1 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities, and
the corresponding rights and privileges of the Trustee, shall be as provided by
the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 7.3 Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning
the Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant
thereto. If required by Section 313(a) of the Trust Indenture Act, the Trustee
shall, within 60 days after each May 15 following the date of this Indenture,
deliver to Holders a brief report, dated as of such May 15, which complies with
the provisions of such Section 313(a).
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(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
Section 7.4 Reports by Company.
(a) The Company covenants and agrees to file with the Trustee
copies, within 15 days after the Company is required to file the same with the
Commission, of the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the Commission
may from time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934; or, if the Company is not required to
file information, documents or reports pursuant to either of such sections, then
to file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports, if any, which may
be required pursuant to Section 13 of the Securities Exchange Act of 1934, in
respect of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and
the Commission, in accordance with the rules and regulations prescribed from
time to time by the Commission, such additional information, documents and
reports, if any, with respect to compliance by the Company with the conditions
and covenants provided for in this Indenture as may be required from time to
time by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail to all
Holders, as the names and addresses of such Holders appear upon the Security
Register, within 30 days after the filing thereof with the Trustee, such
summaries of information, documents and reports required to be filed by the
Company, if any, pursuant to subsections (a) and (b) of this Section 7.4 as may
be required by rules and regulations prescribed from time to time by the
Commission.
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.1 Company May Consolidate, Etc. Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any corporation, and the Company shall not permit any
corporation to consolidate with or merge into the
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Company or convey, transfer or lease its properties and assets substantially as
an entirety to the Company, unless:
(1) if the Company shall consolidate with or merge into another
corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation, the corporation formed
by such consolidation or into which the Company is merged or the
corporation which acquires by conveyance or transfer, or which leases,
the properties and assets of the Company substantially as an entirety
shall be a corporation, shall be organized and validly existing under
the laws of the United States of America, any State thereof or the
District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the
principal of and any premium and interest on all the Securities and the
performance or observance of every covenant of this Indenture on the
part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and
treating any indebtedness for borrowed money or guarantee thereof which
becomes an obligation of the Company or a Restricted Subsidiary as a
result of such transaction as having been incurred by the Company or
such Restricted Subsidiary at the time of such transaction, no Event of
Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company or a
Restricted Subsidiary, or any shares of capital stock or indebtedness of
any Restricted Subsidiary, would become subject to a mortgage, pledge,
lien, security interest or other encumbrance which would not be
permitted by this Indenture, the Company or such successor corporation,
as the case may be, shall take such steps as shall be necessary
effectively to secure the Securities equally and ratably with (or prior
to) all indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
Section 8.2 Successor Substituted.
Upon any consolidation of the Company with, or merger of the
Company into, any other corporation or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 8.1, the successor corporation formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
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successor corporation had been named as the Company herein; and in the event of
any such conveyance, transfer or lease, the Company (which term shall for this
purpose mean the corporation named as the Company or any successor corporation
which shall have theretofore become such in the manner prescribed in Section
8.1) shall be discharged from all liability under this Indenture and in respect
of the Securities and may be dissolved and liquidated.
ARTICLE IX
Supplemental Indentures
Section 9.1 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by
a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of the
Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to
be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of
such series) or to surrender any right or power herein conferred upon
the Company; or
(3) to add any additional Events of Default with respect to all or
any series of Securities; or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance
of Securities in bearer form, registrable or not registrable as to
principal, and with or without interest coupons, or to permit or
facilitate the issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided, that
any such addition, change or elimination (i) shall neither (A) apply to
any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision nor
(B) modify the rights of the Holder of any such Security with respect to
such provision or (ii) shall become effective only when there is no such
Security Outstanding; or
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(6) to secure the Securities pursuant to the requirements of
Section 10.6 or otherwise; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 3.1; or
(8) 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 6.11(b); or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided that such action pursuant to this clause
(9) shall not adversely affect the interests of the Holders of
Securities of any series in any material respect.
Section 9.2 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or the rate of
accretion of any Original Issue Discount Security or any premium payable
upon the redemption thereof, 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
5.2, or change any Place of Payment where, or the coin or currency in
which, any Security or any premium or interest thereon is payable, or
impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance
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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, Section 5.8 or
Section 5.13 except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, provided, however, that this clause shall not be deemed to
require the consent of any Holder 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 6.11(b) and 9.1(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
Section 9.3 Execution Of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 9.4 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 shall be bound thereby.
Section 9.5 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
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Section 9.6 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
Covenants
Section 10.1 Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
Section 10.2 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series
of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
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Section 10.3 Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will (i) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and
(ii) during the continuance of any default by the Company (or any other obligor
upon the Securities of that series) in the making of any payment in respect of
the Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of or any premium
or interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published 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
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therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
Section 10.4 Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company ending after the date hereof, an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance of
any of the terms, provisions and conditions of this Indenture (without regard to
any period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
Section 10.5 Existence.
Subject to Article VIII, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
Section 10.6 Restrictions on Secured Funded Debt.
The Company will not, nor will it permit any Restricted Subsidiary
to, incur, issue, assume, guarantee or create any Secured Funded Debt, without
effectively providing concurrently with the incurrence, issuance, assumption,
guaranty or creation of any such Secured Funded Debt that the Outstanding
Securities (together with, if the Company shall so determine, any other
Indebtedness of the Company or such Restricted Subsidiary then existing or
thereafter created which is not subordinated to the Outstanding Securities)
shall be secured equally and ratably with (or prior to) such Secured Funded
Debt, so long as such Secured Funded Debt shall be secured by a Lien, unless,
after giving effect thereto, the sum of the aggregate amount of all outstanding
Secured Funded Debt of the Company and its Restricted Subsidiaries together with
all Attributable Debt in respect of sale and leaseback transactions relating to
a Principal Property (with the exception of Attributable Debt which is excluded
pursuant to clauses (1) to (6) of Section 10.7), would not exceed 15% of
Consolidated Net Tangible Assets; provided, however, that this Section 10.6
shall not apply to, and there shall be excluded from Secured Funded Debt in any
computation under this Section 10.6, Funded Debt secured by:
(1) Liens on property, shares of capital stock or indebtedness of
any corporation existing at the time such corporation becomes a
Subsidiary;
(2) Liens on property, shares of capital stock or indebtedness
existing at the time of acquisition thereof or incurred within 180 days
of the time of acquisition thereof
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(including, without limitation, acquisition through merger or
consolidation) by the Company or any Restricted Subsidiary;
(3) Liens on property, shares of capital stock or indebtedness
hereafter acquired (or constructed) by the Company or any Restricted
Subsidiary and created prior to, at the time of, or within 270 days
after such acquisition (including, without limitation, acquisition
through merger or consolidation) (or the completion of such construction
or commencement of commercial operation of such property, whichever is
later) to secure or provide for the payment of all or any part of the
purchase price (or the construction price) thereof;
(4) Liens in favor of the Company or any Restricted Subsidiary;
(5) Liens in favor of the United States of America, any State
thereof or the District of Columbia, or any agency, department or other
instrumentality thereof, to secure partial, progress, advance or other
payments pursuant to any contract or provisions of any statute;
(6) Liens incurred or assumed in connection with an issuance of
revenue bonds the interest on which is exempt from Federal income
taxation pursuant to Section 103(b) of the Internal Revenue Code of
1986, as amended;
(7) Liens securing the performance of any contract or undertaking
not directly or indirectly in connection with the borrowing of money,
the obtaining of advances or credit or the securing of Funded Debt, if
made and continuing in the ordinary course of business;
(8) Liens incurred (no matter when created) in connection with the
Company's or a Restricted Subsidiary's engaging in leveraged or
single-investor lease transactions; provided, however, that the
instrument creating or evidencing any borrowings secured by such Lien
shall provide that such borrowings are payable solely out of the income
and proceeds of the property subject to such Lien and are not a general
obligation of the Company or such Restricted Subsidiary;
(9) Liens under workers' compensation laws, unemployment insurance
laws or similar legislation, or good faith deposits in connection with
bids, tenders, contracts or deposits to secure public or statutory
obligations of the Company or any Restricted Subsidiary, or deposits of
cash or obligations of the United States of America to secure surety and
appeal bonds to which the Company or any Restricted Subsidiary is a
party or in lieu of such bonds, or pledges or deposits for similar
purposes in the ordinary course of business, or Liens imposed by law,
such as laborers' or other employees', carriers', warehousemen's,
mechanics', materialmen's and vendors' Liens, and Liens arising out of
judgments or awards against the Company or any Restricted Subsidiary
with respect to which the Company or such Restricted Subsidiary at the
time shall be
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prosecuting an appeal or proceedings for review and with respect to
which it shall have secured a stay of execution pending such appeal or
proceedings for review, or Liens for taxes not yet subject to penalties
for nonpayment or the amount or validity of which is being in good faith
contested by appropriate proceedings by the Company or any Restricted
Subsidiaries, as the case may be, or minor survey exceptions, minor
encumbrances, easements or reservations of, or rights of others for,
rights of way, sewers, electric lines, telegraph and telephone lines and
other similar purposes, or zoning or other restrictions or Liens as to
the use of real properties, which Liens, exceptions, encumbrances,
easements, reservations, rights and restrictions do not, in the opinion
of the Company, in the aggregate materially detract from the value of
said properties or materially impair their use in the operation of the
business of the Company and its Restricted Subsidiaries;
(10) Liens incurred to finance all or any portion of the cost of
construction, alteration or repair of any Principal Property and
improvements thereto prior to or within 270 days after completion of
such construction, alteration or repair;
(11) Liens outstanding on the date of this Indenture; or
(12) any extension, renewal, refunding or replacement (or
successive extensions, renewals, refundings or replacements), as a whole
or in part, of any Lien referred to in the foregoing clauses (1) to
(11), inclusive; provided, however, that (i) such extension, renewal,
refunding or replacement Lien shall be limited to all or a part of the
same property that secured the Lien extended, renewed, refunded or
replaced (plus improvements on such property) and (ii) the Funded Debt
secured by such Lien at such time is not increased.
Section 10.7 Limitation on Sales and Leasebacks.
The Company will not, nor will it permit any Restricted Subsidiary
to, enter into any arrangement with any Person providing for the leasing by the
Company or any Restricted Subsidiary of any Principal Property of the Company or
any Restricted Subsidiary, which Principal Property has been or is to be sold or
transferred by the Company or such Restricted Subsidiary to such Person (herein
referred to as a "sale and leaseback transaction") unless, after giving effect
thereto, the aggregate amount of all Attributable Debt with respect to all such
sale and leaseback transactions plus all Secured Funded Debt (with the exception
of Funded Debt secured by liens which is excluded pursuant to clauses (1) to
(12) of Section 10.6) would not exceed 15% of Consolidated Net Tangible Assets.
This covenant shall not apply to, and there shall be excluded from Attributable
Debt in any computation under Section 10.6 or this Section 10.7, Attributable
Debt with respect to, any sale and leaseback transaction if:
(1) the Company or a Restricted Subsidiary is permitted to create
Funded Debt secured by a Lien pursuant to clauses (1) to (12) of Section
10.6 on the Principal
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Property to be leased, in an amount equal to the Attributable Debt with
respect to such sale and leaseback transaction, without equally and
ratably securing the Outstanding Securities;
(2) the Company or a Restricted Subsidiary, within 270 days after
the sale or transfer shall have been made by the Company or a Restricted
Subsidiary, shall apply an amount in cash equal to the greater of (i)
the net proceeds of the sale or transfer of the Principal Property
leased pursuant to such arrangement or (ii) the fair market value of the
Principal Property so leased at the time of entering into such
arrangement (as determined by the Chief Executive Officer, the
President, the Chief Financial Officer, the Treasurer or the Controller
of the Company) to the retirement of Secured Funded Debt of the Company
or any Restricted Subsidiary (other than Secured Funded Debt owned by
the Company or any Restricted Subsidiary); provided, however, that no
retirement referred to in this clause (2) may be effected by payment at
maturity or pursuant to any mandatory sinking fund payment or any
mandatory prepayment provision of Secured Funded Debt;
(3) the Company or a Restricted Subsidiary applies the net
proceeds of the sale or transfer of the Principal Property leased
pursuant to such transaction to investment in another Principal Property
within 270 days prior or subsequent to such sale or transfer; provided,
however, that this exception shall apply only if such proceeds invested
in such other Principal Property shall not exceed the total acquisition,
repair, alteration and construction cost of the Company or any
Restricted Subsidiary in such other Principal Property less amounts
secured by any purchase money or construction mortgages on such
Principal Property;
(4) the effective date of any such arrangement is within 270 days
of the acquisition of the Principal Property (including, without
limitation, acquisition by merger or consolidation) or the completion of
construction and commencement of operation thereof, whichever is later;
(5) the lease in such sale and leaseback transaction is for a
term, including renewals, of not more than three years; or
(6) such sale and leaseback transaction is entered into between
the Company and a Restricted Subsidiary or between Restricted
Subsidiaries.
Section 10.8 Restrictions on Funded Debt of Restricted Subsidiaries.
The Company shall not permit any Restricted Subsidiary to incur,
issue, assume, guarantee or create any Funded Debt, unless after giving effect
thereto, the sum of the aggregate amount of all outstanding Funded Debt of the
Restricted Subsidiaries would not exceed 15% of Consolidated Net Tangible
Assets; provided, however, that this Section 10.8 shall not apply to,
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and there shall be excluded from, Funded Debt in any computation under this
Section 10.8, (i) Funded Debt of any corporation existing at the time such
corporation becomes a Restricted Subsidiary and (ii) Indebtedness among the
Company and its Subsidiaries and Indebtedness between Subsidiaries; provided,
further, that this Section 10.8 shall not prohibit the incurrence of
Indebtedness in connection with any extension, renewal, refinancing, replacement
or refunding (including successive extensions, renewals, refinancings,
replacements and refundings), in whole or in part, of any Indebtedness of the
Restricted Subsidiaries (provided that the principal amount of such Indebtedness
being extended, renewed, refinanced, replaced or refunded is not increased) but
any such Indebtedness shall be included in the computation of Funded Debt under
this Section 10.8
Section 10.9 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 10.6 to 10.8, inclusive, with
respect to the Securities of any series if before the time for such compliance
the Holders of at least a majority in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE XI
Redemption of Securities
Section 11.1 Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.1 for Securities of any series)
in accordance with this Article.
Section 11.2 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company, the Company shall, at least 60 days, in the event of a redemption
of less than all the Securities of any series, or at least 45 days, in the event
of a redemption of all the Securities of any series, prior to the Redemption
Date fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date, of the principal amount of
Securities of such series to be redeemed and, if applicable, of the tenor of the
Securities to be redeemed. In the case of any redemption of Securities prior to
the expiration of any restriction on such
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redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
Section 11.3 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series. If less than
all of the Securities of such series and of a specified tenor are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series and specified tenor not previously called for
redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities 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 Securities 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 11.4 Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall identify the Securities to be
redeemed (including, subject to Section 3.11, the CUSIP number) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the particular
Securities to be redeemed,
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(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said
date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company.
Section 11.5 Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.3) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
Section 11.6 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, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 3.1, installments of interest 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 Regular or Special Record Dates according to
their terms and the provisions of Section 3.7.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 11.7 Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly
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executed by, the Holder thereof or his attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series and of like tenor, of any authorized denomination as requested
by such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered. If a
Book-Entry Security is so surrendered, such new Security so issued shall be a
new Book-Entry Security.
ARTICLE XII
Sinking Funds
Section 12.1 Applicability of Article.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise specified
as contemplated by Section 3.1 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 12.2. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 12.2 Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
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Section 12.3 Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 12.2 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 45 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 11.3 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 11.4. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 11.6 and 11.7.
ARTICLE XIII
Defeasance and Covenant Defeasance
Section 13.1 Applicability of Article; Company's Option to Effect Defeasance or
Covenant Defeasance.
If pursuant to Section 3.1 provision is made for either or both of
(a) defeasance of the Securities of a series under Section 13.2 or (b) covenant
defeasance of the Securities of a series under Section 13.3, then the provisions
of such Section or Sections, as the case may be, together with the other
provisions of this Article XIII, shall be applicable to the Securities of such
series, and the Company may at its option by Board Resolution, at any time, with
respect to the Securities of such series, elect to have either Section 13.2 (if
applicable) or Section 13.3 (if applicable) be applied to the Outstanding
Securities of such series upon compliance with the conditions set forth below in
this Article XIII.
Section 13.2 Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to this
Section, the Company shall be deemed to have been discharged from its
obligations with respect to the Outstanding Securities of such series on and
after the date the conditions precedent set forth below are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities of such series and to have satisfied
all its other obligations under such Securities and this Indenture insofar as
such Securities are concerned (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
thereunder: (A) the rights of Holders of Outstanding Securities of such series
to receive, solely from the trust
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fund described in Section 13.4 as more fully set forth in such Section, payments
of the principal of (and premium and interest, if any, on) such Securities when
such payments are due, (B) the Company's obligations with respect to such
Securities under Sections 3.4, 3.5, 3.6, 10.2 and 10.3 and such obligations as
shall be ancillary thereto, (C) the rights, powers, trusts, duties, immunities
and other provisions in respect of the Trustee or any Authenticating Agent
hereunder and (D) this Article XIII. Subject to compliance with this Article
XIII, the Company may exercise its option under this Section 13.2
notwithstanding the prior exercise of its option under Section 13.3 with respect
to the Securities of such series.
Section 13.3 Covenant Defeasance.
Upon the Company's exercise of the above option applicable to this
Section, the Company shall be released from its obligations under Sections 8.1,
10.6, 10.7 and 10.8 (and any covenant applicable to such Securities that are
determined pursuant to Section 3.1 to be subject to this provision) and the
occurrence of an event specified in Section 5.1(4) (with respect to any of
Sections 8.1, 10.6, 10.7 or 10.8) (and any other Event of Default applicable to
such Securities that are determined pursuant to Section 3.1 to be subject to
this provision) shall not be deemed to be an Event of Default with respect to
the Outstanding Securities of such series on and after the date the conditions
set forth below are satisfied (hereinafter, "covenant defeasance"). For this
purpose, such covenant defeasance means that, with respect to the Outstanding
Securities of such series, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
Section or clause whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or clause or by reason of any reference in
any such Section or clause to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.
Section 13.4 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions precedent to application of
either Section 13.2 or Section 13.3 to the Outstanding Securities of such
series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.9 who shall agree to comply with the
provisions of this Article XIII applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities, (A) money in an amount, or (B) U.S.
Government Obligations which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, sufficient, without
reinvestment, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or other qualifying trustee) to pay and
discharge, the principal of (and premium
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and interest, if any on) the Outstanding Securities of such series on
the Maturity of such principal, or premium and interest, if any. Before
such a deposit the Company may make arrangements satisfactory to the
Trustee for the redemption of Securities at a future date or dates in
accordance with Article XI, which shall be given effect in applying the
foregoing. For this purpose, "U.S. Government Obligations" means
securities that are (x) direct obligations of the United States of
America for the payment of which its full faith and credit is pledged or
(y) obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America the payment of
which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in
section 3(a) (2) of the Securities Act of 1933, as amended) as custodian
with respect to any such U.S. Government Obligation or a specific
payment of principal of or interest on any such U.S. Government
Obligation held by such custodian for the account of the holder of such
depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount
received by the custodian in respect of the U.S. Government Obligation
or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depositary receipt.
(2) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to the
Securities of such series shall have occurred and be continuing (A) on
the date of such deposit or (B) insofar as subsections 5.1(5) and 5.1(6)
are concerned, at any time during the period ending on the 121st day
after the date of such deposit or, if longer, ending on the day
following the expiration of the longest preference period applicable to
the Company in respect of such deposit (it being understood that the
condition in this condition shall not be deemed satisfied until the
expiration of such period).
(3) Such defeasance or covenant defeasance shall not (A) cause the
Trustee for the Securities of such series to have a conflicting interest
as defined in Section 6.8 or for purposes of the Trust Indenture Act
with respect to any securities of the Company or (B) result in the trust
arising from such deposit to constitute, unless it is qualified as, a
regulated investment company under the Investment Company Act of 1940,
as amended.
(4) Such defeasance or covenant defeasance shall 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.
(5) In the case of an election under Section 13.2, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of this
Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that,
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the Holders of the Outstanding Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a
result of such defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would have
been the case if such defeasance had not occurred.
(6) In the case of an election under Section 13.3, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a
result of such covenant defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same times as
would have been the case if such covenant defeasance had not occurred.
(7) Such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which
may be imposed on the Company in connection therewith pursuant to
Section 3.1.
(8) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section
13.2 or the covenant defeasance under Section 13.3 (as the case may be)
have been complied with.
Section 13.5 Deposited Money and U.S. Government Obligations to be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 10.3,
all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee -- collectively, for
purposes of this Section 13.5, the "Trustee") pursuant to Section 13.4 in
respect of the Outstanding Securities of such series shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities and
this Indenture, to the payment, either directly or through any Paying Agent (but
not including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest, but such
money need not be segregated from other funds except to the extent required by
law.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the money or U.S. Government
Obligations deposited pursuant to Section 13.4 or the principal and interest
received in respect thereof.
Anything herein to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money
or U.S. Government Obligations held by it as provided in Section 13.4 which, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof
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delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance.
Section 13.6 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 13.2 or 13.3 by reason of any order or judgment or any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under the Securities of such
series shall be revived and reinstated as though no deposit had occurred
pursuant to this Article XIII until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 13.2 or 13.3;
provided, however, that if the Company makes any payment of principal of (and
premium, if any) or interest on any such Security following the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money held by the Trustee or
the Paying Agent.
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.
BRIGGS & STRATTON CORPORATION
By: /s/ ROBERT H. ELDRIDGE
----------------------------------
Name: Robert H. Eldridge
Title: Executive Vice President and
Chief Financial Officer,
Secretary-Treasurer
Attest:
/s/ MICHAEL A. JUNEAU
- ----------------------------
BANK ONE, N.A.
As Trustee
By: /s/ JEFFREY L. EUBANK
----------------------------------
Name: Jeffrey L. Eubank
Title: Auhorized Officer
Attest:
/s/ VICTORIA A. PAVLICK
- ----------------------------
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STATE OF WISCONSIN )
) ss.:
COUNTY OF MILWAUKEE )
On the 4th day of June, 1997, before me personally came Robert H.
Eldridge, to me known, who, being by me duly sworn, did depose and say that he
is the Executive Vice President and Chief Financial Officer,
Secretary-Treasurer of Briggs & Stratton Corporation, one of the corporations
described in and which executed the foregoing instrument; that he knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors
of said corporation, and that he signed his name thereto by like authority.
/s/ KASANDRA K. PRESTON
------------------------------
STATE OF OHIO )
) ss.:
COUNTY OF FRANKLIN )
On the 4th day of June, 1997, before me personally came Jeffrey L. Eubank,
to me known, who, being by me duly sworn, did depose and say that he is the
Authorized Signer of Bank One, N.A., one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
/s/ MICHELLE T. SUTTER
------------------------------
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EXHIBIT 4.2
BRIGGS & STRATTON CORPORATION
7 1/4% NOTE DUE SEPTEMBER 15, 2007
NO. 1001 $100,000,000
CUSIP NO. 109043 AB 5
This Security is a Book-Entry Security in a global form within the meaning
of the Indenture hereinafter referred to and is registered in the name of the
Depository or a nominee of the Depository. This global Security is exchangeable
for Securities registered in the name of a Person other than the Depository or
its nominee only in the limited circumstances described in the Indenture, and no
transfer of this Security (other than a transfer of this Security as a whole by
the Depository to a nominee of the Depository or by a nominee of the Depository
to the Depository or another nominee of the Depository) may be registered except
in such limited circumstances.
Unless this Security is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the issuer or its
agent for registration of transfer, exchange or payment, and any Security issued
upon registration of transfer of, or in exchange for, or in lieu of, this
Security is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
<PAGE> 2
BRIGGS & STRATTON CORPORATION
BRIGGS & STRATTON CORPORATION, a corporation duly organized and existing
under the laws of the State of Wisconsin (herein called the "Company", which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to Cede & Co., as nominee for
DTC, or registered assigns, the principal sum of One Hundred Million Dollars
($100,000,000) on September 15, 2007, and to pay interest thereon from June 4,
1997 or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, semi-annually on March 15 and September 15 in each
year, commencing March 15, 1998, at the rate of 7 1/4% per annum, until the
principal hereof is paid or made available for payment. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the March 1 or
September 1 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in New York, New York, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to herein by manual signature, this Security shall not be
entitled to any benefit under the Indenture hereinafter referred to or be valid
or obligatory for any purpose.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of June 4, 1997 (herein called the
"Indenture"), between the Company and Bank One, N.A., as Trustee (herein called
the "Trustee", which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited in aggregate principal amount to $100,000,000.
-2-
<PAGE> 3
The Securities of this series will be redeemable in whole or in part at any
time at the option of the Company at a redemption price (the "Redemption Price")
equal to the greater of (i) 100% of the principal amount of such Securities and
(ii) the sum of the present values of the remaining scheduled payments of
principal and interest thereon discounted to the date of redemption (the
"Redemption Date") on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate plus 15 basis points, plus in each
case accrued but unpaid interest thereon to the Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date, the rate
per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the Securities of this series to
be redeemed that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term
of such Securities. "Independent Investment Banker" means one of the
Reference Treasury Dealers appointed by the Trustee after consultation
with the Company.
"Comparable Treasury Price" means, with respect to any Redemption
Date, (i) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its
principal amount) on the third Business Day preceding such Redemption
Date, as set forth in the daily statistical release (or any successor
release) published by the Federal Reserve Bank of New York and
designated "Composite 3:30 p.m. Quotations for U.S. Government
Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such Business Day, (a)
the average of the Reference Treasury Dealer Quotations for such
Redemption Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (b) if the Trustee obtains fewer than
four such Reference Treasury Dealer Quotations, the average of all
such Reference Treasury Dealer Quotations. "Reference Treasury Dealer
Quotations" means, with respect to each Reference Treasury Dealer and
any Redemption Date, the average, as determined by the Trustee, of the
bid and asked prices for the Comparable Treasury Issue (expressed in
each case as a percentage of its principal amount) quoted in writing
to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third Business Day preceding such Redemption Date.
"Reference Treasury Dealer" means each of Credit Suisse First Boston
Corporation and BancAmerica Securities, Inc. and their respective
successors; provided, however, that if any of the foregoing shall
cease to be a primary U.S. Government securities dealer in New York
City (a "Primary Treasury Dealer"), the Company shall substitute
therefor another Primary Treasury Dealer.
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<PAGE> 4
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the Redemption Date to each holder of the Securities of this
series to be redeemed.
Unless the Company defaults in payment of the Redemption Price, on and
after the Redemption Date interest will cease to accrue on the Securities of
this series or portions thereof called for redemption.
The Securities of this series shall not provide for a sinking fund.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Security or certain restrictive covenants and the related
Events of Default with respect to this Security, in each case upon compliance
with certain conditions set forth therein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registerable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and any premium and
interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized
-4-
<PAGE> 5
denominations and for the same Stated Maturity and aggregate principal amount,
will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
Interest on this Security shall be computed on the basis of a 360-day year
of twelve 30-day months.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
This Security shall be governed by and construed in accordance with the
laws of the State of New York without giving effect to the conflict of laws
provisions thereof.
-5-
<PAGE> 6
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: June 4, 1997
(seal) BRIGGS & STRATTON CORPORATION
By: /s/ FREDERICK P. STRATTON, JR.
------------------------------
Name: Frederick P. Stratton, Jr.
Title: Chairman and Chief
Executive Officer
Attest:
By: /s/ ROBERT H. ELDRIDGE
------------------------------
Name: Robert H. Eldridge
Its: Executive Vice President
and Chief
Financial Officer, Secretary-
Treasurer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
BANK ONE, N.A.,
as Trustee, certifies that this is one of the
Securities referred to in the within-mentioned
Indenture.
Dated: June 4, 1997
By: /s/ JEFFREY L. EUBANK
-------------------------
Authorized Signatory
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<PAGE> 1
EXHIBIT 4.3
BRIGGS & STRATTON CORPORATION
Resolutions of the
Board of Directors
April 16, 1997
--------------
The Board of Directors of BRIGGS & STRATTON CORPORATION, a Wisconsin
corporation (the "Company"), HEREBY ADOPTS the following resolutions:
I. SHELF REGISTRATION STATEMENT FOR UP TO $250 MILLION OF DEBT SECURITIES
WHEREAS, it is advisable and in the best interests of the
Company to effect public offering(s) of debt securities of the Company
in an aggregate principal amount resulting in gross proceeds to the
Company of up to a maximum of $250,000,000 on terms to be determined
as provided below:
NOW, THEREFORE, BE IT RESOLVED as follows:
A. GENERAL AUTHORIZATION
RESOLVED, that the Company is hereby authorized: (a) to effect
public offering(s) of debt securities of the Company in an aggregate
principal amount resulting in gross proceeds to the Company of up to
$250,000,000 on terms established in accordance with these
resolutions, which debt securities may be denominated in foreign
currencies or foreign currency units or issued at original issue
discount and, to the extent issued at original issue discount or
denominated in, purchased for or payable in foreign currencies or
foreign currency units, shall be that principal amount as may result
in the initial offering prices to the public aggregating up to
$250,000,000 (determined in the case of foreign currencies or foreign
currency units by reference to the equivalent in United States dollars
at the time of offering); (b) to issue one or more series of
Debentures, Notes and other evidences of indebtedness to evidence the
indebtedness authorized by or pursuant to these resolutions having
terms established in accordance with these resolutions (and all
Debentures, Notes and other evidences of indebtedness that shall
actually be issued by the Company pursuant to such authorization are
herein collectively called the "Debt Securities"); and (c) to enter
into indentures and fiscal and paying agency
<PAGE> 2
agreements governing the Debt Securities (and any supplements thereto)
having terms established in accordance with these resolutions (and
such indenture and any such fiscal or paying agency agreements (and
any supplements thereto) governing the Debt Securities into which the
Company shall actually enter are herein collectively called the
"Indenture");
B. TRANSACTION TERMS
RESOLVED, that any of the Chairman of the Board, the President,
the Chief Financial Officer, the Controller or the General Counsel
(each, an "Authorized Officer") are hereby authorized to determine:
(a) the terms of the Indenture and the bank or trust company that
shall serve as trustee under the Indenture; (b) the entity that shall
serve as paying agent under the Indenture; (c) the terms of each
series of Debt Securities to be issued by the Company under the
Indenture (including but not limited to the aggregate principal amount
of debt to be represented by those Debt Securities, the rate at which
interest shall accrue on those Debt Securities (including but not
limited to any default rate or, if Debt Securities are issued with
original issue discount, the rate of accretion thereon), the time(s)
at which payment(s) of principal shall become due on those Debt
Securities and the amount of each such payment, the dates on which
interest on the Debt Securities is to be paid, the extent of the
Company's right to make prepayments of amounts owed on those Debt
Securities and the amount of the premium (if any) which may be payable
in connection with any such prepayment, or to extend the maturity
thereof); (d) whether the Company shall enter into any supplement to
the Indenture (including but not limited to any supplement
establishing the terms of any series of Debt Securities) and the terms
of any such supplement; (e) the price at which the Debt Securities
shall be sold; (f) if other than United States dollars, any currency
or currency unit in which the securities are to be denominated, or
which is to be received in payment or in which principal or interest,
if any, is to be payable; (g) all other terms governing the sale of
the Debt Securities (including whether and to what extent the Debt
Securities shall be sold under firm commitment underwriting
arrangements, sold directly to investment bankers for subsequent
public sale, sold pursuant to best efforts arrangements, sold in
private placement, sold through agents, sold in the U.S. market or
sold in the Euromarket or any other overseas securities market); (h)
in connection with any firm commitment underwriting, the underwriters
to be utilized, the underwriting discount and other fees applicable to
such underwriting, the indemnification and contribution arrangements
to be made by the Company in connection with such underwriting and all
other terms governing such underwriting; (i) in connection with any
medium term note program, the agents to be utilized, the agents'
discounts or commissions, the indemnification and contribution
arrangements to be made by the Company in connection with such program
and all other terms governing
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<PAGE> 3
such program; (j) the exchange or exchanges (if any) on which the Debt
Securities shall be listed and the terms of any such listing; (k) the
terms upon which the Debt Securities may be registered, qualified or
otherwise cleared under Federal and state securities laws; (l) whether
the Debt Securities shall be senior or subordinated to other debt of
the Company; (m) whether the Debt Securities are to be in definitive
or book-entry form and, if the latter, the depository with respect to
the Debt Securities; and (n) any other actions that the Company may
take relating to the Debt Securities;
RESOLVED, that the yield to maturity of any issue of Debt
Securities authorized by any of the Authorized Officers shall (i) in
the case of Debt Securities having a fixed interest rate, not exceed
350 basis points above the yield to maturity on debt issued by the
United States Treasury having a comparable maturity (provided,
however, that in selecting debt of the United States Treasury with a
comparable maturity for purposes of making this determination, if
more than one issue of the United States Treasury has a comparable
maturity date, the issue whose coupon rate is nearest its yield to
maturity shall be the issue selected), or (ii) in the case of Debt
Securities having a floating interest rate, on the basis of the
initial interest rate established, not exceed 150 basis points above
the LIBOR rate maturing on periodic dates equal or substantially
comparable to the periods for which such rate is established (in
making the foregoing determinations pursuant to clause (i) or (ii)
above, such Authorized Officer may rely upon quotations of debt issued
by the United States Treasury furnished to it by such persons as they
may elect in their sole judgment and all determinations made by such
Authorized Officer as to the terms of the Debt Securities being issued
in accordance with this resolution shall be final and conclusive in
all respects and binding on the Company);
C. IMPLEMENTING ACTIONS
RESOLVED, that any officer of the Company is hereby authorized
to cause the Company to take any action that such officer shall deem
to have been authorized in or pursuant to these resolutions including
but not limited to: (a) the filing with the Securities and Exchange
Commission (the "Commission") of a Registration Statement to register
the Debt Securities under the Securities Act of 1933, as amended, and
such pre-effective and post-effective amendments to such Registration
Statement as such officer may deem appropriate and, including after
the effective date of the Registration Statement, any supplements to
the prospectus filed as part of the Registration Statement that such
officer may deem necessary or appropriate; (b) the execution and
filing with the Commission of an application for the registration of
the Debt Securities under the Securities Exchange Act of 1934, as
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<PAGE> 4
amended, if necessary, and all additional instruments and documents
which may be necessary to effectuate such registration; (c) the
execution and filing of a Listing Application for the listing of the
Debt Securities on any stock exchange on which such officer deems such
Debt Securities should be listed and any related Indemnity Agreement
or other documentation which such officer may deem desirable and the
appearance before the Committee on Stock Lists (or other similar body)
of any such exchange, and such other acts as such officer may deem
necessary to conform with the requirements for listing the Debt
Securities on any such exchange; (d) the qualification of the
Indenture under the Trust Indenture Act of 1939, as amended; (e) the
execution of letters of representation or other submissions to a
depository with respect to book-entry securities; and (f) the
execution and filing with the appropriate state agencies of all
requisite instruments, records and documents, including but not
limited to applications, reports, surety bonds, irrevocable consents
and appointments of attorneys for service of process and any other
action which such officer shall deem desirable to comply with the
applicable laws of any state or other jurisdiction of the United
States of America governing the qualification or registration for sale
of all or part of the Debt Securities;
RESOLVED, that each officer and director of the Company who may
be required to execute such Registration Statements or any amendments
thereto is hereby authorized to execute a Power of Attorney appointing
Thomas R. Savage, Robert H. Eldridge and James E. Brenn, and each of
them severally, his true and lawful attorney to execute in his name,
place and stead, in his capacity as director or officer, or both as
the case may be, such Registration Statements, and any and all
amendments and post-effective amendments thereto, and all instruments
necessary or incidental in connection therewith and to file the same
with the Commission. Each of such attorneys shall have power to act
hereunder with or without the other attorney and shall have full power
and authority to do and perform in the name and on behalf of each of
such directors or officers, or both as the case may be, every act
whatsoever requisite or necessary to be done, which each of such
officers or directors, or both, might or could do in person;
D. PRINCIPAL AMOUNT LIMITATION
RESOLVED, that the $250,000,000 authorization contained in
these resolutions with respect to the issuance and sale of Debt
Securities shall be separate from and in addition to the dollar amount
of any authorization to issue notes, debentures or other debt
securities of the Company contained in resolutions previously adopted
by this Board of Directors and currently in effect;
-4-
<PAGE> 5
E. STATES SECURITIES REGISTRATION
RESOLVED, that any officer of the Company is hereby authorized
to take any and all action which such officer may deem necessary or
appropriate in order to effect the registration or qualification of
part or all of the Debt Securities for offer and sale under the
securities or Blue Sky laws of those states and other jurisdictions in
which such officer determines such registration or qualification to be
advisable, and in connection therewith to execute, acknowledge,
verify, deliver, file and publish all such applications, reports,
issuer's covenants, resolutions, consents to service of process and
other papers and instruments as may be required under such laws, and
to take any and all further action which such officer may deem
necessary or appropriate in order to maintain any such registration or
qualification for as long as such officer deems it to be in the best
interests of the Company; provided, however, that if application is
made in any state or jurisdiction that requires a resolution of the
Board of Directors as an exhibit to the application and such state or
jurisdiction does not recognize the form of resolution immediately
preceding, the Board of Directors hereby adopts the form of any
resolution required by such state or jurisdiction, if such officer is
of the opinion that the adoption of such resolution is necessary or
advisable and evidences such opinion by instructing the Secretary of
the Company to attach as an appendix to these resolutions a copy of
such resolution, which shall thereupon be deemed to have been adopted
by the Board of Directors with the same force and effect as if
presented in such form for the approval of the Board of Directors, and
the Secretary of the Company is empowered and authorized to certify to
any such state or jurisdiction that any such form of resolution has
been adopted by this resolution; and provided, further, that the
following resolution is hereby adopted with respect to those
jurisdictions which have approved its use:
"RESOLVED, that it is desirable and in the best interest of the
Company that its securities be qualified or registered for sale
in various states; that the President or any Vice President and
the Secretary or an Assistant Secretary hereby are authorized to
determine the states in which appropriate action shall be taken
to qualify or register for sale all or such part of the
securities of the Company as said officers may deem advisable;
that said officers are hereby authorized to perform on behalf of
the Company any and all such acts as they may deem necessary or
advisable in order to comply with the applicable laws of any such
states, and in connection therewith to execute and file all
requisite papers and
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<PAGE> 6
documents, including, but not limited to, applications, reports,
surety bonds, irrevocable consents and appointments of attorneys
for service of process; and the execution by such officers of any
such paper or document or the doing by them of any act in
connection with the foregoing matters shall conclusively
establish their authority therefor from the Company and the
approval and ratification by the Company of the papers and
documents so executed and the action so taken;"
F. DOCUMENTATION
RESOLVED, that any Authorized Officer of the Company is hereby
authorized to execute and deliver on behalf of the Company any
agreement, Debt Securities, Registration Statement, other governmental
filings or other documents of any kind which such officer deems
necessary or desirable in connection with any implementing action
referred to in these resolutions with respect to an offering(s) of
Debt Securities, including but not limited to: (a) the Indenture; (b)
any supplement to the Indenture; (c) the Debt Securities (the
execution of which may be by means of facsimile signature); (d) any
Underwriting Agreement and any related pricing agreement, delayed
delivery agreement or other documentation on substantially the terms
approved by an Authorized Officer as provided in the foregoing
resolutions; and (e) any Distribution Agreement and any related Terms
Agreement or other documentation on substantially the terms approved
by an Authorized Officer as provided in the foregoing resolutions;
II. GENERAL
RESOLVED, that any officer of the Company is hereby authorized
to perform on behalf of the Company any and all such acts as any of
them may deem necessary or advisable in order to comply with any
applicable laws in connection with the transactions contemplated by
the foregoing resolutions;
RESOLVED, that any officer is hereby authorized and empowered
to take any such additional action, including but not limited to (i)
retaining agents, (ii) executing any agreements, undertakings, powers
of attorney or documents and (iii) making such filings or obtaining
such authorizations, approvals or permits from any governmental
authorities as any such officer shall deem necessary or appropriate to
effectuate the transactions contemplated by the foregoing resolutions;
RESOLVED, that whenever it is provided in these resolutions
that any officer or officers of the Company may execute any agreement,
instrument or document, or take any such other action as such officer
or officers may consider necessary or appropriate or as such officer
or officers may
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<PAGE> 7
approve, the fact that such officer or officers shall execute such
agreement, instrument or document, or take such other action, shall be
conclusive evidence that (i) such officer or officers consider(s) the
execution of such agreement, instrument or document or the taking of
such other action to be necessary or appropriate, and approve(s) such
action and (ii) such execution and delivery was authorized in or
pursuant to these resolutions and upon such execution and delivery,
such agreement or document shall become binding upon the Company in
accordance with its terms;
RESOLVED, that any and all prior actions of any officers of the
Company in connection with the matters contemplated by this and the
foregoing resolutions be, and each such action hereby is, approved,
ratified, confirmed and adopted in all respects;
RESOLVED, that this Board of Directors hereby adopts any
additional resolutions that may be requested by any governmental
authority, stock exchange or any other person which any officer
believes necessary or desirable to accomplish any implementing action
referred to in these resolutions. The Secretary or any Assistant
Secretary of the Company is hereby authorized to certify that any such
resolution has been duly adopted by the Board of Directors of the
Company.
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<PAGE> 1
EXHIBIT 4.4
BRIGGS & STRATTON CORPORATION
ACTIONS OF THE AUTHORIZED OFFICERS
Pursuant to the authority granted by the Board of Directors of Briggs &
Stratton Corporation (the "Company") in its April 16, 1997 resolutions, the
undersigned agree as follows:
1. The Company shall issue $100,000,000 aggregate principal amount of
the Company's 7 1/4% Notes due September 15, 2007 (the "Notes").
2. The Company shall issue and sell Notes to Credit Suisse First
Boston Corporation and BancAmerica Securities, Inc. (collectively, the
"Underwriters") pursuant to an Underwriting Agreement dated May 30, 1997
and a Terms Agreement dated May 30, 1997 ("Terms Agreement") between
the Company and the Underwriters, upon the terms and conditions set forth
therein, to be issued under and in accordance with an Indenture, dated as
of June 4, 1997, between the Company and Bank One, N.A., as Trustee
("Trustee"), relating to the Company's Notes and other obligations
("Indenture").
3. In addition to the other terms provided in the Indenture with
respect to securities issued thereunder, all as more particularly
described in the Terms Agreement, the Prospectus and the Prospectus
Supplement relating to the Notes and the form of Note referred to below,
the Notes shall contain the following terms:
(a) The Notes shall be entitled "7 1/4% Notes Due September 15,
2007";
(b) The Notes shall be limited in aggregate principal amount to
$100,000,000;
(c) Interest shall be payable to the persons in whose names the
Notes are registered at the close of business on the applicable
Regular Record Date (as defined below);
(d) The principal of the Notes is payable on September 15, 2007;
(e) The Notes shall bear interest at the rate of 7 1/4% per annum
beginning June 4, 1997. Interest on the Notes will be computed
on the basis of a 360-day year of twelve 30-day months and will
be payable semi-annually on March 15 and September 15 of
each year (each an "Interest Payment Date"), commencing on
March 15, 1998. Interest shall be paid to persons in whose
names the Notes (or any predecessor Notes) are registered at
the
<PAGE> 2
close of business on the March 1 or September 1, as the case may
be, next preceding the Interest Payment Date (each a "Regular
Record Date");
(f) Payment of the principal of, premium, if any, and interest on
the Notes will be made at the office or agency of the Company
maintained for that purpose in New York, New York;
(g) The Notes will be redeemable in whole or in part at any time at
the option of the Company at a redemption price (the "Redemption
Price") equal to the greater of: (i) 100% of the principal
amount of such Notes and (ii) the sum of the present values of
the remaining scheduled payments of principal and interest
thereon discounted to the date of redemption (the "Redemption
Date") on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Rate plus 15
basis points, plus in each case accrued but unpaid interest
thereon to the Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date, the
rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, assuming a price for
the Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for
such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having
a maturity comparable to the remaining term of the Notes to be
redeemed that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to
the remaining term of such Notes. "Independent Investment
Banker" means one of the Reference Treasury Dealers appointed by
the Trustee after consultation with the Company.
"Comparable Treasury Price" means, with respect to any
Redemption Date, (i) the average of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) on the third Business Day
preceding such Redemption Date, as set forth in the daily
statistical release (or any successor release) published by the
Federal Reserve Bank of New York and designated "Composite 3:30
p.m. Quotations for U.S. Government Securities" or (ii) if such
release (or any successor release) is not published or does not
contain such prices on such Business Day, (a) the average of the
Reference Treasury Dealer Quotations for such Redemption Date,
after excluding the highest and lowest such Reference Treasury
Dealer
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<PAGE> 3
Quotations, or (b) if the Trustee obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such
Reference Treasury Dealer Quotations. "Reference Treasury Dealer
Quotations" means, with respect to each Reference Treasury
Dealer and any Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Trustee by such
Reference Treasury Dealer at 5:00 p.m. on the third Business Day
preceding such Redemption Date.
"Reference Treasury Dealer" means each of Credit Suisse First
Boston Corporation and BancAmerica Securities, Inc. and their
respective successors; provided, however, that if any of the
foregoing shall cease to be a primary U.S. Government securities
dealer in New York City (a "Primary Treasury Dealer"), the
Company shall substitute therefor another Primary Treasury
Dealer.
Notice of any redemption will be mailed at least 30 days but not
more than 60 days before the Redemption Date to each holder of
the Notes to be redeemed.
Unless the Company defaults in payment of the Redemption Price,
on and after the Redemption Date interest will cease to accrue
on the Notes or portions thereof called for redemption;
(h) The Notes shall not provide for any sinking fund;
(i) The Notes are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof;
(j) The payment of the principal of, premium, if any, and interest
on the Notes shall be made in such coin or currency of the
United States of America as at the time of payment is legal
tender for payment of public and private debts;
(k) The payment of principal of, premium, if any, and interest on
the Notes shall not be determined with reference to an index or
formula (except as described in clause (g));
(l) There shall be no optional currency or currency unit in which
the payment of principal of, premium, if any, and interest on
the Notes shall be payable;
(m) Both Section 13.2 and 13.3 of the Indenture shall apply to the
Notes;
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<PAGE> 4
(n) The Notes shall be in the form of Book-Entry Securities as set
forth in Section 3.5 of the Indenture;
(o) The principal amount of the Notes shall be payable upon
declaration of acceleration pursuant to Section 5.2 of the
Indenture;
(p) Settlement for the Notes will be made by the Underwriters in
immediately available funds and all payment of principal of,
premium, if any, and interest on the Notes will be made by the
Company in immediately available funds; the Notes will trade in
The Depository Trust Company's Same-Day Funds Settlement System
until maturity, and secondary market trading activity in the
Notes will therefore settle in immediately available funds; and
(q) The other terms and conditions of the Notes shall be
substantially as set forth in the Indenture and in the
Prospectus and the Prospectus Supplement relating to the Notes.
4. The form of the Notes shall be substantially as attached hereto as
Exhibit A.
5. The price at which the Notes shall be sold by the Company to the
Underwriters pursuant to the Terms Agreement shall be 98.653% of the principal
amount thereof, plus accrued interest, if any, from June 4, 1997 to the time of
delivery.
6. The Notes initially will be offered to the public by the Underwriters
at 99.303% of the principal amount thereof, plus accrued interest, if any, from
June 4, 1997 to the time of delivery.
7. The execution and delivery of the Underwriting Agreement dated May 30,
1997 and the related Terms Agreement dated May 30, 1997 (substantially in the
form attached hereto as Exhibit B) is hereby approved.
8. Any officer of this Company specified in the first paragraph of
Section 3.3 of the Indenture is hereby authorized and empowered to execute the
Notes of this Company in the form he or she deems appropriate, and to deliver
such Notes to the Trustee with a written order directing the Trustee to have the
Notes authenticated and delivered to such persons as such officer designates.
9. Bank One, N.A. is hereby designated and appointed as Paying Agent and
Securities Registrar with respect to the Notes.
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<PAGE> 5
IN WITNESS WHEREOF, on behalf of the Company, the undersigned Authorized
Officers of the Company have executed this Officers' Certificate as of this
30th day of May, 1997.
BRIGGS & STRATTON CORPORATION
By: /s/ ROBERT H. ELDRIDGE
---------------------------
Name: Robert H. Eldridge
Title: Executive Vice President and
Chief Financial Officer,
Secretary-Treasurer
By: /s/ JAMES E. BRENN
----------------------------
Name: James E. Brenn
Title: Vice President and Controller
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<PAGE> 1
EXHIBIT 4.5
BRIGGS & STRATTON CORPORATION
OFFICERS' CERTIFICATE
AND
COMPANY ORDER
With respect to the issuance by Briggs & Stratton Corporation (the
"Company") of $100,000,000 aggregate principal amount of its 7 1/4% Notes due
September 15, 2007 (the "Notes"), on behalf of the Company, Robert H. Eldridge
and James E. Brenn, the undersigned officers of the Company, certify pursuant
to Sections 2.1, 3.1 and 3.3 of the Indenture, dated as of June 4, 1997 (the
"Indenture"), between the Company and Bank One, N.A., as Trustee (the
"Trustee"), as follows:
1. We have read Sections 2.1, 3.1 and 3.3 of the Indenture and the
definitions therein relating hereto, reviewed the resolutions
of the Board of Directors of the Company adopted on April 16, 1997
(attached as Exhibit C to the Secretary's Certificate of even date
herewith), reviewed the Actions of the Authorized Officers of May
30, 1997 (attached as Exhibit D to the Secretary's Certificate of
even date herewith, the "Actions of the Authorized Officers"),
conferred with executive officers of the Company and, in our
opinion, made such other examinations and investigations as are
necessary to enable us to express an informed opinion as to whether
Sections 2.1, 3.1 and 3.3 of the Indenture have been complied with.
2. Based on the above-described examinations and investigations,
in our opinion, all conditions precedent relating to the
authentication and delivery of the Notes, including those
conditions under Sections 2.1, 3.1 and 3.3 of the Indenture, have
been complied with.
3. The terms of the Notes are set forth in the Actions of the
Authorized Officers.
4. In accordance with the provisions of Section 3.3 of the
Indenture, the Trustee is hereby authorized and requested to
authenticate the Notes and to deliver the Notes to or at the
direction of Credit Suisse First Boston Corporation.
Capitalized terms used herein and not otherwise defined herein shall have
the respective meanings assigned thereto in the Indenture.
<PAGE> 2
IN WITNESS WHEREOF, on behalf of the Company, the undersigned have
executed this Officers' Certificate and Company Order as of this 4th day of
June, 1997.
BRIGGS & STRATTON CORPORATION
By: /s/ ROBERT H. ELDRIDGE
------------------------------------------
Name: Robert H. Eldridge
Title: Executive Vice President and Chief
Financial Officer, Secretary-Treasurer
By: /s/ JAMES E. BRENN
------------------------------------------
Name: James E. Brenn
Title: Vice President and Controller
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