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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 3, 1996
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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HARRIS CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 34-0276860
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
1025 W. NASA Boulevard
Melbourne, Florida 32919
(407) 727-9100
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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RICHARD L. BALLANTYNE
Harris Corporation
1025 W. NASA Boulevard
Melbourne, Florida 32919
(407) 727-9100
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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COPIES TO:
JAMES J. MAIWURM DANIEL M. ROSSNER
Crowell & Moring Brown & Wood
1001 Pennsylvania Avenue, N.W. One World Trade Center
Washington, D.C. 20004 New York, New York 10048
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after this Registration Statement becomes effective.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / / __________________
If this Form is a post-effective amendment filed pursuant to Rule 462(b)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / / __________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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TITLE OF EACH CLASS OF PROPOSED PROPOSED
SECURITIES TO BE AMOUNT TO MAXIMUM OFFERING MAXIMUM AGGREGATE AMOUNT OF
REGISTERED BE REGISTERED PRICE PER UNIT(1) OFFERING PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Debt Securities.......... $250,000,000 100% $250,000,000 $86,206.90
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to Section 8(a), may determine.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED MAY 3, 1996
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PROSPECTUS
$250,000,000
HARRIS CORPORATION
DEBT SECURITIES LOGO
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Harris Corporation ("Harris" or the "Company") may offer and issue from
time to time up to $250,000,000 aggregate initial public offering price of its
Debt Securities in one or more series. The Company will offer Debt Securities to
the public on terms to be determined by market conditions.
The accompanying Prospectus Supplement or the applicable Pricing Supplement
sets forth the specific designation, aggregate principal amount, purchase price,
maturity, interest rate (or manner of calculation thereof), time of payment of
interest (if any), listing (if any) on a securities exchange, and any other
specific terms of the Debt Securities, and the name of and compensation to each
dealer, underwriter or agent (if any) involved in the sale of Debt Securities.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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The Debt Securities may be offered directly, through dealers, through
underwriters or through agents designated from time to time, as set forth in the
Prospectus Supplement. Net proceeds to the Company will be the purchase price in
the case of a purchaser or dealer, the public offering price less discount in
the case of an underwriter, or the purchase price less commission in the case of
an agent -- in each case, less other expenses attributable to issuance and
distribution. See "Plan of Distribution" for indemnification arrangements for
dealers, underwriters and agents.
This Prospectus may not be used to consummate sales of Debt Securities
unless accompanied by a Prospectus Supplement and applicable Pricing Supplement.
May , 1996
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NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS, THE PROSPECTUS SUPPLEMENT OR ANY
PRICING SUPPLEMENT, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR BY ANY
UNDERWRITER, AGENT OR DEALER. NEITHER THE DELIVERY OF THIS PROSPECTUS AND THE
PROSPECTUS SUPPLEMENT ATTACHED HERETO (TOGETHER "THIS SUPPLEMENTED PROSPECTUS")
OR ANY PRICING SUPPLEMENT NOR ANY SALE MADE THEREUNDER SHALL UNDER ANY
CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS
OF THE COMPANY SINCE THE DATE HEREOF. THIS SUPPLEMENTED PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION TO BUY DEBT SECURITIES IN ANY
JURISDICTION TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION.
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AVAILABLE INFORMATION
Harris is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information concerning Harris can be inspected and copied
at Room 1024 of the Commission's office at 450 Fifth Street, N.W., Washington,
D.C. 20549, and the Commission's Regional Offices in New York (7 World Trade
Center, New York, New York 10048) and Chicago (500 West Madison Street, Chicago,
Illinois 60661). Copies of such material can be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington. D.C.
20549, at prescribed rates. Reports, proxy material and other information
concerning Harris also may be inspected at the offices of the New York Stock
Exchange, Inc., 20 Broad Street, New York, New York 10005. This Prospectus does
not contain all information set forth in the Registration Statement, of which
this Prospectus is a part, and Exhibits thereto which Harris has filed with the
Commission under the Securities Act of 1933, as amended (the "Securities Act"),
and to which reference is hereby made.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended June 30, 1995,
Quarterly Reports on Form 10-Q for the quarters ended September 30, 1995,
December 31, 1995 and March 31, 1996, and Current Reports on Form 8-K dated
October 12, 1995, January 4, 1996 and January 10, 1996, which were filed by
Harris (Commission File No. 1-3863) with the Commission under the Exchange Act,
are incorporated in this Prospectus by reference.
All documents filed by Harris pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Debt Securities shall be deemed to be
incorporated herein by reference and to be a part hereof from the date of filing
of such documents.
Any statement contained herein or in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
Harris will provide without charge to any person receiving a copy of this
Prospectus, including any beneficial owner, upon oral or written request, a copy
of any and all of the documents incorporated by reference herein, except for the
exhibits to such documents which are not specifically incorporated by reference
into such documents. Requests should be directed to Richard L. Ballantyne,
Secretary, Harris Corporation, 1025 W. NASA Boulevard, Melbourne, Florida 32919
(407) 727-9100.
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THE COMPANY
Harris, along with its subsidiaries, is a worldwide company focused on four
major core businesses: advanced electronic systems, semiconductors,
communications and an office equipment distribution network. The executive
offices of the Company are located at 1025 W. NASA Boulevard, Melbourne, Florida
32919, and the telephone number is (407) 727-9100.
The Company's operations are carried out through three operating sectors
and a subsidiary, which correspond to its business segments used for financial
reporting purposes: Electronic Systems, Semiconductor, Communications and Lanier
Worldwide, Inc. Harris structures its operations primarily around the markets it
serves. Its operating divisions, which are the basic operating units, have been
organized on the basis of technology and markets. For the most part, each
operating division has its own marketing, engineering, manufacturing and service
organizations.
The Electronic Systems sector of Harris is engaged in advanced research,
development, design and production of high technology systems for government
agencies and commercial organizations in the United States and overseas.
Applications of the sector's state-of-the-art technologies include avionics and
space systems, support equipment, C(3)I (Command, Control, Communication and
Intelligence), energy management, newspaper composition, real-time and
high-performance computing and design automation.
The Semiconductor sector of the Company produces standard, semicustom and
custom integrated circuits and discrete devices based on complementary metal
oxide semiconductor (CMOS), bipolar, dielectric isolation, gallium arsenide
(GaAs) and radiation hardening technologies. These products are focused on
signal processing and control segments of the worldwide semiconductor market
that demand the highest levels of performance in terms of speed, precision,
low-power consumption and reliability in harsh environments.
The Communications sector of the Company produces a comprehensive line of
communications equipment and systems, including microwave, lightwave, two-way
radio, broadcast radio and television systems, digital telephone switches,
satellite systems, auxiliary telecommunication products and turnkey
communication systems.
Lanier Worldwide, Inc., is a wholly-owned subsidiary of Harris which
markets, sells and services office equipment and business communication products
on a global basis. Lanier Worldwide is among the industry's largest (measured by
sales) independent distributors of copying systems, facsimile units, laser
printers and presentation and document systems. Through its Voice Products
Division, Lanier Worldwide is a market leader in dictation equipment ranging
from pocket-size units to large-capacity analog and digital systems. Lanier
Worldwide is also a leading supplier of business telephone systems, private
branch exchanges and continuous-recording systems for monitoring and logging
two-way voice communications.
USE OF PROCEEDS
Unless otherwise specified in the Prospectus Supplement or the applicable
Pricing Supplement, the net proceeds from the sale of the Debt Securities
offered hereby will be used for general corporate purposes, including the
repayment of existing indebtedness and additions to working capital. The Company
may raise additional funds from time to time through equity or debt financings.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
the Company for the periods indicated.
<TABLE>
<CAPTION>
FISCAL YEAR ENDED JUNE 30 NINE MONTHS ENDED MARCH 31
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1991 1992 1993 1994 1995 1995 1996
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<S> <C> <C> <C> <C> <C> <C>
1.11 2.47 3.17 3.56 3.88 3.57 3.90
</TABLE>
For purposes of computing the ratio of earnings to fixed charges, earnings
are divided by fixed charges. Earnings represent the sum of income from
continuing operations before income taxes for the Company and its subsidiaries
plus fixed charges, minus interest capitalized, plus amortization of interest
capitalized. Fixed
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charges represent interest expense of the Company and its subsidiaries
(including interest capitalized) plus one-third (the proportion deemed
representative of the interest factor) of rents.
DESCRIPTION OF DEBT SECURITIES
The statements under this caption relating to the Debt Securities and the
Indenture are summaries and do not purport to be complete. Such summaries use
terms defined in, and are qualified in their entirety by reference to, the Debt
Securities and the Indenture and the cited provisions thereof. All references to
"Section" or "Article" in this "Description of Debt Securities" are to the
applicable Section or Article of the Indenture. A copy of the Indenture is filed
as an exhibit to the Registration Statement of which this Prospectus is a part.
GENERAL
The Debt Securities will be issued under an Indenture dated as of May 1,
1996 (the "Indenture") between the Company and Chemical Bank (the "Trustee").
The Indenture authorizes the issuance by the Company from time to time of Debt
Securities in one or more series. The Indenture does not limit the amount of
Debt Securities which may be issued thereunder, and provides that the specific
terms of any series of Debt Securities shall be set forth in, or determined
pursuant to, an authorizing resolution of the Board of Directors of the Company
or in a supplemental indenture relating to such series. The Debt Securities will
be unsecured obligations of the Company and will rank pari passu with all other
unsecured and unsubordinated obligations of the Company. The Debt Securities
will be a new issue of securities with no established trading market. No
assurance can be given as to the liquidity of the trading market for the Debt
Securities.
Reference is made to the Prospectus Supplement or applicable Pricing
Supplement for the following terms of the Debt Securities ("Offered Debt
Securities") in respect of which this Prospectus is being delivered (to the
extent such terms are applicable to such Debt Securities): (i) designation,
aggregate principal amount and purchase price; (ii) date of maturity; (iii)
interest rate or rates (or method by which such rate or rates will be
determined), if any; (iv) the dates on which any such interest will be payable;
(v) the place or places where the principal of and interest, if any, on the
Offered Debt Securities will be payable; (vi) any redemption or sinking fund
provisions; (vii) whether the Offered Debt Securities are to be issued in the
form of one or more global securities and, if so and different from the
depositary identified below, the identity of a depositary for such global
securities; and (viii) any other specific terms of the Offered Debt Securities.
The Prospectus Supplement or Pricing Supplement relating to each series of
Debt Securities will indicate either that Debt Securities of such series cannot
be redeemed prior to maturity or that such Debt Securities will be redeemable at
the option of the Company, at the option of the holder or both, on or after a
specified date or dates prior to maturity on terms set forth therein. Except as
set forth in the applicable Prospectus Supplement or Pricing Supplement, the
Debt Securities will not be subject to any sinking fund.
The Company may purchase Debt Securities at any price in the open market or
otherwise. Debt Securities so purchased by the Company may, at the discretion of
the Company, be held or resold or surrendered to the Trustee for cancellation or
in satisfaction of any redemption requirements.
Debt Securities will bear interest at a fixed rate or a floating rate. Debt
Securities bearing no interest or interest at a rate which, at the time of
issuance, is below the prevailing market rate will be sold at a substantial
discount below their stated principal amount. Special United States federal
income tax considerations applicable to any such discounted Debt Securities or
to certain Debt Securities issued at par which are treated as having been issued
at a discount for United States federal income tax purposes are described in the
relevant Prospectus Supplement.
Debt Securities will be issued only in fully registered form and will be
represented either by Debt Securities issued in definitive form or by one or
more Global Securities registered in the name of a depositary
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or its nominee (see "Global Securities" below). In the case of Debt Securities
issued in definitive form, the applicable Prospectus Supplement or Pricing
Supplement will specify the manner of payment of principal and interest thereon
and the place or places where the Debt Securities may be presented for exchange
or transfer.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in the form of one or more
fully registered global securities (each a "Global Security") that will be
deposited with The Depository Trust Company (the "Depositary"), or with a
nominee for the Depositary. In such case, one or more Global Securities will be
issued in a denomination or aggregate denominations equal to the portion of the
aggregate principal amount of outstanding Debt Securities of the series to be
represented by such Global Security or Securities. Unless and until it is
exchanged in whole or in part for Debt Securities in definitive registered form,
a Global Security may not be transferred except as a whole by the Depositary to
a nominee of the Depositary or by a nominee of the Depositary to the Depositary
or to another nominee of the Depositary or by the Depositary or any such nominee
to a successor of the Depositary or a nominee of such successor.
The Depositary has advised the Company that it is a limited-purpose trust
company organized under the laws of the State of New York, a member of the
Federal Reserve System, a "clearing corporation" within the meaning of the
Uniform Commercial Code and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Exchange Act. The Depositary was created to
hold securities for persons that have accounts with the Depositary
("participants") and to facilitate the clearance and settlement of securities
transactions among its participants in such securities through electronic
book-entry changes in accounts of the participants, thereby eliminating the need
for physical movement of securities certificates. The Depositary's participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations, some of whom (and/or their
representatives) own the Depositary. Access to the Depositary's book-entry
system is also available to others, such as banks, brokers, dealers and trust
companies that clear through or maintain a custodial relationship with a
participant, either directly or indirectly. Persons who are not participants may
beneficially own securities held by the Depositary only through participants.
Upon the issuance of a Global Security, the Depositary will credit, on its
book-entry registration and transfer system, the respective principal amounts of
the Debt Securities represented by such Global Security to the accounts of
participants. The accounts to be credited shall be designated by any
underwriters or agents participating in the distribution of such Debt
Securities, or by the Company if such Debt Securities are offered and sold
directly by the Company. Ownership of beneficial interests in a Global Security
will be limited to participants or persons that may hold interests through
participants. Ownership of beneficial interests in such Global Security will be
shown on, and the transfer of such ownership will be effected only through,
records maintained by the Depositary or its nominee (with respect to beneficial
interests of participants) or by participants or persons that hold through
participants (with respect to beneficial interests of beneficial owners). The
laws of some states require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and such laws may
impair the ability to transfer beneficial interests in a Global Security.
So long as the Depositary or its nominee is the registered owner of a
Global Security, the Depositary or such nominee, as the case may be, will be
considered the sole owner or holder of the Debt Securities represented by such
Global Security for all purposes under the Indenture. Except as set forth below,
owners of beneficial interests in a Global Security will not be entitled to have
the Debt Securities represented by such Global Security registered in their
names, will not receive or be entitled to receive physical delivery of such Debt
Securities in definitive form and will not be considered the owners or holders
thereof under the Indenture.
Principal, premium, if any, and interest payments on Debt Securities
represented by a Global Security registered in the name of the Depositary or its
nominee will be made to the Depositary or its nominee, as the case may be, as
the registered owner of such Global Security. None of the Company, the Trustee,
any paying agent or any security registrar for such Debt Securities will have
any responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in such Global
Security, or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
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The Company expects that the Depositary or its nominee, upon receipt of any
payment of principal, premium, if any, or interest in respect of a Global
Security, will immediately credit participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the principal
amount of such Global Security as shown on the records of the Depositary or its
nominee. The Company also expects that payments by participants to owners of
beneficial interests in a Global Security held through such participants will be
governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers in "street names," and will
be the responsibility of such participants.
If the Depositary is at any time unwilling, unable or ineligible to
continue as depositary and a successor depositary is not appointed by the
Company within ninety days, the Company will issue Debt Securities of any series
then represented by one or more Global Securities in definitive form in exchange
for such Global Security or Securities. In addition, the Company may at any time
and in its sole discretion determine not to have the Debt Securities of a series
represented by one or more Global Securities and, in such event, will issue Debt
Securities of such series in definitive form in exchange for the Global Security
or Securities representing such Debt Securities. Further, if the Company so
specifies with respect to the Debt Securities of a series, an owner of a
beneficial interest in a Global Security representing such Debt Securities may,
on terms acceptable to the Company and the Depositary for such Global Security,
receive such Debt Securities in definitive form. In any such instance, an owner
of a beneficial interest in such a Global Security will be entitled to have Debt
Securities equal in principal amount to such beneficial interest registered in
its name and will be entitled to physical delivery of such Debt Securities in
definitive form. Debt Securities so issued in definitive form will, except as
set forth in the applicable Prospectus Supplement, be issued in denominations of
$1,000 and any integral multiple of $1,000 in excess thereof and will be issued
in registered form only, without coupons.
CERTAIN RESTRICTIONS
The restrictions summarized below apply to the Offered Debt Securities
unless the Prospectus Supplement provides otherwise. Certain terms used in the
following description of such restrictions are defined under "Certain
Definitions" below. The following description does not purport to be complete
and is qualified in its entirety by reference to the Indenture.
Limitations on Liens
The Indenture provides that the Company and its Restricted Subsidiaries
will not create, incur, assume or suffer to exist any mortgage, pledge or other
lien or encumbrance of or upon any Principal Property or any shares of capital
stock or indebtedness of any Restricted Subsidiary, whether now owned or
hereafter acquired, if after giving effect thereto (but not to certain permitted
liens) the aggregate principal amount of indebtedness secured by mortgages,
pledges, liens or other encumbrances would be in excess of 5% of the Company's
Consolidated Net Worth (as defined in the Indenture) unless the Debt Securities
then outstanding will be secured by such mortgage, pledge, lien or encumbrance
equally and ratably with (or prior to) any and all obligations, indebtedness or
claims secured by such mortgage, pledge, lien or encumbrance; except that the
Company and its Restricted Subsidiaries may incur certain liens and encumbrances
described in the Indenture without so securing the Debt Securities. Among such
permitted liens are (i) purchase money mortgages, including conditional sales
and other title retention agreements; (ii) liens securing certain construction
and improvement loans; (iii) liens in connection with government contracts; (iv)
liens securing indebtedness of a Restricted Subsidiary outstanding at the time
it became a Subsidiary; and (v) certain liens in favor of an instrumentality of
the United States or any State or any political subdivision thereof to secure
indebtedness incurred to finance the acquisition, construction or improvement of
the property subject to the lien. (Section 5.11)
Limitations on Sales and Leasebacks
The Indenture provides that the Company and its Restricted Subsidiaries
will not sell or transfer any Principal Property with the intention of entering
into a lease of such facility for a term of more than three years, unless the
Attributable Debt in respect of all such sales and leasebacks involving
Principal Properties shall not exceed 5% of Consolidated Net Worth, or unless
the net proceeds of such sale are applied to the redemption of Debt Securities
or the reduction of other Funded Debt in an aggregate principal amount (or, in
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the case of an Original Issue Discount Security, such portion of the principal
as would have been payable if such Securities had been accelerated to such date)
equal to such net proceeds, or unless the Company applies such net proceeds to
the purchase of properties, facilities or equipment to be used for operating
purposes. (Section 5.10)
Consolidation, Merger or Sale of Assets
The Company covenants in the Indenture that it will not consolidate or
merge with or into any other corporation, or sell or transfer all or
substantially all of its property and assets to any other corporation, (i)
unless the surviving or successor corporation assumes the obligations of the
Company under the Indenture and is not in default thereunder immediately after
the consummation of the transaction or (ii) if, upon such consolidation, merger,
sale or transfer becoming effective, any of the property or assets of the
Company would become or be subject to any mortgage or other lien (an "additional
lien"), other than liens existing thereon prior thereto and liens permitted by
Section 5.11 (see "Limitations on Liens" above), unless, prior to such
consolidation, merger, sale or transfer, the Debt Securities are directly
secured by a lien ranking prior to such additional lien on all of the property
and assets of the Company that would become subject to such additional lien or
the Debt Securities outstanding immediately after such consolidation, merger,
sale or transfer shall be equally and ratably secured with (or prior to) any and
all obligations, indebtedness and claims secured by such additional lien.
(Section 12.01)
In the event of a sale or transfer of substantially all of the assets of
the Company and the assumption of the Company's obligations under the Indenture
by the purchaser, the Company will be discharged from all obligations under the
Indenture and the Debt Securities. (Section 12.02)
Certain Definitions
The term "Attributable Debt" with respect to any sale and leaseback
transaction means, at the time of the determination, the present value
(discounted at the rate of interest implicit in the terms of the lease) of the
obligation of the lessee for net 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). "Net rental payments" as used in the
preceding sentence means the sum of the rental and other payments required to be
paid in such period by the lessee under any lease, not including, however, any
amounts required to be paid by such lessee (whether or not designated as rental
or additional rental) on account of maintenance and repairs, insurance, taxes,
assessments, water rates or similar charges required to be paid by such lessee
thereunder or any amounts required to be paid by such lessee thereunder
contingent upon the amount of sales, maintenance and repairs, insurance, taxes,
assessments, water rates or similar charges. (Section 1.01)
The term " Original Issue Discount Security" means any Debt Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 7.01 of the Indenture. (Section 1.01)
The term "Principal Property" means any manufacturing plant located within
the United States of America (other than its territories or possessions) and
owned or leased by the Company or any Subsidiary, except any such plant that, in
the opinion of the Board of Directors, is not of material importance to the
business conducted by the Company and its Subsidiaries, taken as a whole.
(Section 1.01)
The term "Restricted Subsidiary" means any Subsidiary that owns or leases a
Principal Property. As noted above, the definition of Principal Property does
not include foreign facilities. "Subsidiary" means any corporation of which the
Company, or the Company and one or more Subsidiaries, directly or indirectly own
at the time (i) more than 50% of the outstanding capital stock having under
ordinary circumstances (not dependent upon the happening of a contingency)
voting power in the election of members of the board of directors, managers or
trustees of said corporation, and (ii) securities having at such time voting
power to elect at least a majority of the members of the board of directors,
managers or trustees of said corporation. (Section 1.01)
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EVENTS OF DEFAULT
As used in the Indenture, the term "Event of Default" with respect to any
series of Debt Securities includes (i) the failure of the Company to pay
interest on such Debt Securities that continues for a period of 30 days after
such payment is due, or to make any principal or premium payment when due; (ii)
the failure of the Company to comply with any other agreements contained in the
Indenture or such Debt Securities for 90 days after notice of such failure;
(iii) certain events of bankruptcy, insolvency or reorganization of the Company;
and (iv) an event of default as defined in any mortgage, indenture or instrument
under which is issued, or securing or evidencing, indebtedness of the Company
(other than the Debt Securities of such series) that results in such
indebtedness becoming or being declared due and payable prior to maturity, if
such acceleration is not rescinded within 10 days after notice to the Company
from the Trustee (or to the Company and the Trustee from the holders of not less
than 25% of the then outstanding Securities of all series) under the Indenture.
The Indenture provides that the Trustee may withhold notice to the holders of
any series of Debt Securities of any default (except a default in payment of
principal of, premium, if any, or interest on any Debt Security) if the Trustee
determines it is in the best interest of the holders of such Debt Securities to
do so. (Section 7.01 and Section 7.07)
The Indenture provides that, (i) if an Event of Default due to the default
in payment of principal of, premium, if any, or interest on, any series of Debt
Securities issued under the Indenture, or due to the default in the performance
or breach of any other covenant or warranty of the Company applicable to the
Debt Securities of such series but not applicable to all outstanding Debt
Securities issued under the Indenture, shall have occurred and be continuing,
either the Trustee or the holders of not less than 25% in principal amount of
the Debt Securities of each affected series (voting as a single class) issued
under the Indenture and then outstanding may then declare the principal (or, in
the case of Original Issue Discount Securities, such portion of the principal as
may be specified in the terms thereof) of all Debt Securities of each such
affected series and interest accrued thereon to be due and payable immediately
and (ii) if an Event of Default due to a default in the performance of any other
of the covenants or agreements in the Indenture applicable to all outstanding
Debt Securities issued thereunder and then outstanding, due to certain events of
bankruptcy, insolvency and reorganization of the Company, or due to defaults
under and acceleration of other indebtedness under circumstances described in
the Indenture, shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in principal amount of all Debt Securities then
outstanding under the Indenture (treated as a single class) may declare the
principal (or, in the case of Original Issue Discount Securities, such portion
of the principal as may be specified in the terms thereof) of all such Debt
Securities and interest accrued thereon to be due and payable immediately;
provided that upon certain conditions such declarations may be annulled, and
past defaults may be waived (except a continuing default in payment of principal
of or premium, if any, or interest on such Debt Securities), by the holders of a
majority in principal amount of the Debt Securities of such series (or of all
series, in the case of defaults described in clause (ii)) then outstanding.
(Section 7.01 and Section 7.06)
The Trustee may refuse to enforce the Indenture or the Debt Securities
unless it first receives satisfactory security or indemnity. Subject to certain
limitations specified in the Indenture, the holders of a majority in principal
amount of the Debt Securities of an affected series then outstanding will have
the right to direct the time, methods and place of conducting any proceeding for
any remedy available to the Trustee. (Section 8.02 and Section 7.06)
SATISFACTION AND DISCHARGE OF INDENTURE
The Indenture provides that the Company will be discharged from obligations
in respect of the Indenture and the outstanding Debt Securities of a series upon
deposit in trust with the Trustee of money or U.S. Government Obligations
sufficient for payment of all principal and interest on the Debt Securities of
such series, when due; provided, however, that, in the event of such deposit,
certain of the Company's obligations under the Indenture, including the
obligation to pay the principal of and interest on the Debt Securities of such
series, shall continue until all of such Debt Securities of such series issued
under the Indenture are no longer outstanding. Such a deposit in trust may occur
only if, among other things, the Company has received an opinion of counsel
stating that holders of Debt Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of such deposit
and discharge and will be subject to federal
8
<PAGE> 10
income tax on the same amounts and in the same manner and at the same times as
would have been the case if such deposit and discharge had not occurred.
(Article Four)
MODIFICATION
Under the Indenture, subject to certain exceptions, the rights and
obligations of the Company and the rights of the holders of a series of Debt
Securities may be modified by the Company and the Trustee only with the consent
of the holders of at least 66 2/3% in aggregate principal amount of Debt
Securities of such series then outstanding. However, no extension of the
maturity of any Debt Securities, or reduction in the interest rate, principal
amount, or premium, if any, payable upon redemption, or extension of the time of
payment of interest, or reduction in the amount of principal due and payable
upon an acceleration of maturity upon an Event of Default or the amount thereof
provable in bankruptcy, or impairment or effect upon the right of any holder of
the Debt Securities to institute suit for the payment thereof or, if the
securities provide therefor, any right of repayment at the option of the holder
of the Debt Securities, or reduction of the percentage of any series of Debt
Securities required for modification, will be effective without the consent of
the holder of each Debt Security so affected. (Section 11.02)
REPORTS TO TRUSTEE
The Company covenants in the Indenture that it will provide Trustee with an
officers' certificate stating that the activities of the Company during the
preceding fiscal year have been reviewed and that, to the best of the knowledge
of such officers, the Company is not in default in the performance, observance
or fulfillment of the terms, provisions and conditions of the Indenture and that
no default exists or, if a default exists, specifying all such defaults of which
such officers may have knowledge. (Section 5.13)
REGARDING THE TRUSTEE
The Trustee, Chemical Bank, is one of a number of banks with which the
Company maintains ordinary banking relationships and credit facilities.
PLAN OF DISTRIBUTION
The Company may sell Offered Debt Securities to one or more underwriters
for public offering and sale by them or may sell the Offered Debt Securities to
investors directly or through agents. Any such underwriter or agent involved in
the offer and sale of the Offered Debt Securities will be named in the
applicable Prospectus Supplement. The Company also may, from time to time,
authorize dealers, acting as the Company's agents, to offer and sell the Offered
Debt Securities upon the terms and conditions as are set forth in the Prospectus
Supplement. The Company has reserved the right to sell Offered Debt Securities
directly to investors on its own behalf in those jurisdictions where it is
authorized to do so.
Underwriters may offer and sell the Offered Debt Securities at a fixed
price or prices, which may be changed, at market prices prevailing at the time
of sale, at prices related to such prevailing market prices or at negotiated
prices. In connection with the sale of the Offered Debt Securities, underwriters
may be deemed to have received compensation from the Company in the form of
underwriting discounts or commissions and may also receive commissions from
purchasers of the Offered Debt Securities for whom they may act as agent.
Underwriters may sell the Offered Debt Securities to or through dealers, and
such dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions from the purchasers for
whom they may act as agent.
Any underwriting compensation paid by the Company to underwriters or agents
in connection with the offering of Offered Debt Securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers, are
set forth in the applicable Prospectus Supplement or Pricing Supplement.
Underwriters, dealers and agents may be entitled, under agreements entered into
with the Company, to indemnification against and contribution toward certain
civil liabilities, including liabilities under the Securities Act of 1933, as
amended.
9
<PAGE> 11
LEGAL MATTERS
The validity of the Offered Debt Securities will be passed upon for the
Company by Crowell & Moring, Washington, D.C. Certain legal matters relating to
the Offered Debt Securities will be passed upon for the underwriters by Brown &
Wood, New York, New York. Certain matters will be passed upon for the Company by
Richard L. Ballantyne, Vice President and General Counsel of the Company.
EXPERTS
The consolidated financial statements and schedule of Harris Corporation
and subsidiaries appearing in the Company's Annual Report (Form 10-K) for the
year ended June 30, 1995, have been audited by Ernst & Young LLP, independent
certified public accountants, as set forth in their report included therein and
incorporated herein by reference. Such consolidated financial statements and
schedule are incorporated herein by reference in reliance upon such report given
upon the authority of such firm as experts in accounting and auditing.
10
<PAGE> 12
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the issuance and distribution of the Debt
Securities, other than underwriting discounts and agency fees or commissions,
are set forth in the following table. All amounts except the Securities and
Exchange Commission registration fee are estimated.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee.......... $ 86,207
Printing and engraving expenses.............................. 21,000
Accountants' fees and expenses............................... 10,000
Legal fees and expenses...................................... 75,000
Fees and expenses of Trustee................................. 18,000
Rating agency fees........................................... 170,000
Blue Sky fees and expenses................................... 10,000
Miscellaneous................................................ 9,793
----------
Total........................................................ $400,000
==========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article VI of the By-laws of the Company, which is incorporated herein by
reference to the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996, and Section 145 of the General Corporation Law of the State of
Delaware, provide for indemnification by the Company of its officers and
directors under certain conditions and subject to certain limitations. The
Company maintains officers' and directors' liability insurance which insures
against claims and liabilities (with stated exceptions) that officers and
directors of the Company may incur in such capacities. The Company has also
entered into agreements with its officers and directors which indemnify them
against claims and liabilities to which they may become subject by reason of
their positions with the Company.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- -------------------- -------------------------------------------------------------------------
<S> <C>
1 Form of Underwriting Agreement.
4 Indenture, dated as of May 1, 1996, between the Company and Chemical
Bank, as trustee.
5 Opinion of Crowell & Moring.
12 Statement re computation of ratios of earnings to fixed charges.
23.1 Consent of Crowell & Moring (included in Exhibit 5).
23.2 Consent of Ernst & Young LLP.
24 Powers of Attorney.
25 Form T-1 -- Statement of Eligibility of Trustee.
</TABLE>
II-1
<PAGE> 13
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made of
the Debt Securities registered hereby, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act") that are incorporated by reference in
the Registration Statement.
(2) That, for the purpose of determining any liability under the Act, each
such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the Debt Securities being registered which remain unsold at the termination
of the offering.
(4) That, for purposes of determining any liability under the Act, each
filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of
the Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the provisions referred to in Item 15 above, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-2
<PAGE> 14
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, HARRIS
CORPORATION CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS
ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY OF MELBOURNE, STATE OF FLORIDA, ON THIS 3RD DAY OF
MAY, 1996.
HARRIS CORPORATION
By: /s/ B. R. ROUB
-------------------------------
Bryan R. Roub
Senior Vice President-Chief
Financial Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
PHILLIP W. FARMER* Chairman of the Board, )
---------------------------------- President and Chief Executive )
Phillip W. Farmer Officer (Principal Executive )
Officer and Director) )
)
)
/s/ B. R. ROUB Senior Vice President-Chief )
---------------------------------- Financial Officer (Principal )
Bryan R. Roub Financial Officer) )
)
)
/s/ R. W. FAY Vice President-Controller )
---------------------------------- (Principal Accounting Officer) )
Robert W. Fay )
)
ROBERT CIZIK* Director )
---------------------------------- )
Robert Cizik )
)
LESTER E. COLEMAN* Director )
---------------------------------- )
Lester E. Coleman )
)
RALPH D. DENUNZIO* Director ) May 3, 1996
---------------------------------- )
Ralph D. DeNunzio )
)
JOSEPH L. DIONNE* Director )
---------------------------------- )
Joseph L. Dionne )
)
JOHN T. HARTLEY* Director )
---------------------------------- )
John T. Hartley )
)
KAREN KATEN* Director )
---------------------------------- )
Karen Katen )
)
WALTER F. RAAB* Director )
---------------------------------- )
Walter F. Raab )
)
ALEXANDER B. TROWBRIDGE* Director )
---------------------------------- )
Alexander B. Trowbridge )
</TABLE>
*By /s/ RICHARD L. BALLANTYNE
--------------------------------
Richard L. Ballantyne,
Attorney-in-Fact
<PAGE> 1
Exhibit 1
UNDERWRITING AGREEMENT
______________, 1996
Harris Corporation
1025 W. NASA Boulevard
Melbourne, Florida 32919
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
Harris Corporation, a Delaware corporation (the "Company"), proposes to issue
and sell $____________________ aggregate initial offering price of ___%
Debentures due _______________ 202_ (the "Debt Securities" or the "Offered
Securities"). The Debt Securities will be issued pursuant to the provisions of
an Indenture dated as of ______________, ______ (the "Indenture") between the
Company and _______________________, as Trustee (the "Trustee") .
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriters agree
to purchase, severally and not jointly, the respective principal amounts of
Debt Securities set forth below opposite their names at a purchase price of
___% of the principal amount of Debt Securities:
<TABLE>
<CAPTION>
Principal Amount of
Name Debt Securities
---- -------------------
<S> <C>
Morgan Stanley & Co. Incorporated
Salomon Brothers Inc
Total .... ====================
$___________________
</TABLE>
The Underwriters will pay for the Offered Securities upon delivery
thereof at the offices of Brown & Wood, One World Trade Center, New York, New
York 10048 at ______ a.m. (New York time) on ________________, 1996, or at
such other time, not later than
<PAGE> 2
5:00 p.m. (New York time) on ______________, 1996, as shall be designated by
the Manager. The time and date of such payment and delivery are hereinafter
referred to as the Closing Date.
The Offered Securities shall have the terms set forth in the
Prospectus dated _______________________, and the Prospectus Supplement dated
____________________, including the following:
Term of Debt Securities
<TABLE>
<S> <C>
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dates: ____________ __ and
____________ __ commencing
____________ __, ____
[(Interest accrues from
____________ __, ____)]1
Form and Denomination:
</TABLE>
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Debt Securities, which has been declared effective. The Company has filed
with, or transmitted for filing to, or shall promptly hereafter file with or
transmit for filing to, the Commission a prospectus supplement (the "Prospectus
Supplement") specifically related to the Offered Securities pursuant to Rule
424 under the Securities Act of 1933, as amended. The term "Registration
Statement" means the registration statement, including the exhibits thereto, as
amended to the date of this Agreement. The term "Basic Prospectus" means the
prospectus included in the Registration Statement. The term "Prospectus" means
the Basic Prospectus together with the Prospectus Supplement. The term
"preliminary prospectus" means a preliminary prospectus supplement specifically
relating to the Offered Securities, together with the Basic Prospectus. As
used herein, the terms "Basic Prospectus," "Prospectus" and "preliminary
prospectus" shall include in each case the documents, if any, incorporated by
reference therein. The terms "supplement" and "amendment" or "amend" as used
in this Agreement shall include all documents that are deemed to be
incorporated by reference in the Prospectus that are filed subsequent to the
date of the Basic Prospectus by
[FN]
____________________
1 To be added only if the transaction does not close flat.
2
<PAGE> 3
the Company with the Commission pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act").
1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to and agrees with each of the Underwriters that:
a. The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the
Commission.
b. (i) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act and
the applicable rules and regulations of the Commission thereunder, (ii) each
part of the Registration Statement, when such part became effective, did not
contain, and each such part, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, (iii) the Registration Statement and the Prospectus comply,
and, as amended or supplemented, if applicable, will comply in all material
respects with the Securities Act and the applicable rules and regulations of
the Commission thereunder and (iv) the Prospectus does not contain and, as
amended or supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set forth
in this Section 1(b) do not apply (A) to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to any
Underwriter through the Manager expressly for use therein or (B) to that part
of the Registration Statement that constitutes the Statement of Eligibility
(Form T-1) under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), of the Trustee.
c. The Company has been duly incorporated, is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
3
<PAGE> 4
d. Each significant subsidiary, as defined in Rule 405 of
Regulation C of the Commission, of the Company (a "Significant Subsidiary") has
been duly incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the corporate
power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries, taken as a
whole.
e. This Agreement has been duly authorized, executed and
delivered by the Company.
f. The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability.
g. The Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters in accordance with the terms
of the Underwriting Agreement, will be entitled to the benefits of the
Indenture, and will be valid and binding obligations of the Company,
enforceable in accordance with their respective terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (ii) rights of acceleration, if any,
and the availability of equitable remedies may be limited by equitable
principles of general applicability.
h. The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Indenture and the Offered Securities will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of the Company or
any agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries, taken as a
whole, or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Company of its
obligations
4
<PAGE> 5
under this Agreement, the Indenture and the Offered Securities, except such as
may be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Offered Securities.
i. There has not occurred any material adverse change, or any
development known to the officers of the Company which the Company presently
and reasonably believes will involve a prospective material adverse change, in
the condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus.
j. There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration Statement or the
Prospectus and are not so described or any statutes, regulations, contracts or
other documents that are required to be described in the Registration Statement
or the Prospectus or to be filed or incorporated by reference as exhibits to
the Registration Statement that are not described, filed or incorporated as
required.
k. The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
l. The Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
m. Each of the Company and its Significant Subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates and permits
of and from, and has made all declarations and filings with, all federal,
state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own, lease, license and
use its properties and assets and to conduct its business in the manner
described in the Prospectus, except to the extent that the failure to obtain or
file would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
2. PUBLIC OFFERING. The Company is advised by the Manager that
the Underwriters propose to make a public offering of their respective portions
of the Offered Securities as soon after this Agreement has been entered into as
in the Manager's judgment is advisable. The terms of the public offering of
the Offered Securities are set forth in the Prospectus.
3. PURCHASE AND DELIVERY. Except as otherwise provided in this
Section 3, payment for the Offered Securities shall be made by wire transfer in
immediately available funds to the account so
5
<PAGE> 6
specified in writing to the Underwriters at least two full business days prior
to the Closing Date, upon delivery to the Manager for the respective accounts
of the several Underwriters of the Offered Securities, registered in such names
and in such denominations as the Manager shall request in writing not less than
two full business days prior to the date of delivery, with any transfer taxes
payable in connection with the transfer of the Offered Securities to the
Underwriters duly paid.
4. CONDITIONS TO CLOSING. The several obligations of the
Underwriters hereunder are subject to the following conditions:
a. Subsequent to the execution and delivery of the Underwriting
Agreement and prior to the Closing Date,
(i) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating accorded
any of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act;
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations, of
the Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus, that, in the judgment of the Manager, is
material and adverse and that makes it, in the judgment of the
Manager, impracticable to market the Offered Securities on the terms
and in the manner contemplated in the Prospectus; and
(iii) there shall not have occurred any (A) suspension or
material limitation of trading generally on or by, as the case may be,
the New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of
Trade, (B) suspension of trading of any securities of the Company on
any exchange or in the over-the-counter market, (C) declaration of a
general moratorium on commercial banking activities in New York by
either Federal or New York State authorities or (D) any outbreak or
escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of the Manager, is material
and adverse and, in the case of any of the events described in clauses
(iii)(A) through (D), such event, singly or together with any other
such event, makes it, in the judgment of the Manager, impracticable to
market the Offered Securities on the terms and in the manner
contemplated by the Prospectus.
6
<PAGE> 7
b. The Manager shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of the
Company, to the effect set forth in clause (a)(i) above and to the effect that
the representations and warranties of the Company contained in this Agreement
are true and correct as of the Closing Date and that the Company has complied
with all of the agreements and satisfied all of the conditions on its part to
be performed or satisfied on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the
best of his knowledge as to proceedings threatened.
c. The Manager shall have received on the Closing Date an opinion
of Crowell & Moring, independent counsel for the Company, dated the Closing
Date, to the effect that
(i) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole;
(ii) each Significant Subsidiary of the Company has been
duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has
the corporate power and authority to own its property and to conduct
its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as
a whole;
(iii) each of the Company and its Significant Subsidiaries
has all necessary consents, authorizations, approvals, orders,
certificates and permits of and from, and has made all declarations
and filings with, all federal, state, local and other governmental
authorities, all self-regulatory organizations and all courts and
other tribunals, to own, lease, license and use its properties and
assets and to conduct its business in the manner described in the
Prospectus, as amended or supplemented, except to the extent that the
failure to obtain or file would not have a
7
<PAGE> 8
material adverse effect on the Company and its subsidiaries, taken as
a whole;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company;
(v) the Offered Securities have been duly authorized and,
when executed and authenticated in accordance with the provisions of
the Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will be entitled to the
benefits of the Indenture and will be valid and binding obligations of
the Company, enforceable in accordance with their terms except as (a)
the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (b) rights of
acceleration, if any, and the availability of equitable remedies may
be limited by equitable principles of general applicability;
(vi) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Indenture and the Offered Securities will not contravene any
provision of applicable law or the certificate of incorporation or
by-laws of the Company or any agreement or other instrument known to
such counsel and binding upon the Company or any of its subsidiaries
that is material to the Company and its subsidiaries, taken as a
whole, or, to the best of such counsel's knowledge, any judgment,
order or decree of any governmental body, agency or court having
jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, the Indenture and the
Offered Securities, except such as may be required by the securities
or Blue Sky laws of the various states in connection with the offer
and sale of the Offered Securities;
(vii) the statements (1) in the Prospectus under the
captions "Description of Debt Securities" and "Plan of Distribution,"
(2) in "Item 3 - Legal Proceedings" of the Company's most recent
annual report on Form 10-K incorporated by reference in the Prospectus
and (3) in "Item 1 - Legal Proceedings" of Part II of the Company's
quarterly reports on Form 10-Q, if any, filed since such annual
report, in each case insofar as such statements constitute summaries
of the legal matters, documents or proceedings referred to therein,
fairly present the information called for with respect to such legal
matters, documents and proceedings and fairly summarize the matters
referred to therein;
8
<PAGE> 9
(viii) such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company or
any of its subsidiaries is a party or to which any of the properties
of the Company or any of its subsidiaries is subject that are required
to be described in the Registration Statement or the Prospectus and
are not so described or of any statutes, regulations, contracts or
other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed or incorporate by reference
as exhibits to the Registration Statement that are not described,
filed or incorporated as required;
(ix) the Company is not an "investment company" or an
entity "controlled" by an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended; and
(x) such counsel (1) is of the opinion that each
document, if any, incorporated by reference in the Prospectus, as
amended or supplemented (except for financial statements and schedules
and other financial or statistical data included or incorporated
therein as to which such counsel need not express any opinion),
complied as to form when filed with the Commission in all material
respects with the Exchange Act and the applicable rules and
regulations of the Commissions thereunder, (2) is of the opinion that
the Prospectus, as amended or supplemented (except for financial
statements and schedules and other financial or statistical data
included or incorporated therein as to which such counsel need not
express any opinion), comply as to form in all material respects with
the Securities Act and the applicable rules and regulations of the
Commission thereunder and (3) believes that (except for financial
statements and schedules and other financial or statistical data as to
which such counsel need not express any belief) the Prospectus as of
the date such opinion is delivered does not contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
d. The Manager shall have received on the Closing Date an opinion
of Brown & Wood, special counsel for the Underwriters, dated the Closing Date,
covering the matters referred to in subparagraph (iii), (iv), (vi) (but only as
to the statements in the Prospectus under "Description of Debt Securities" and
"Plan of Distribution") and (x) (2) and (3) of paragraph (c) above.
With respect to subparagraphs (i), (ii), (iii), (vi), (vii) (with
respect to "Legal Proceedings") and (viii), Crowell & Moring may state that
their opinion is based solely on the
9
<PAGE> 10
opinion of Richard L. Ballantyne, General Counsel of the Company, which opinion
shall be address to both Crowell & Moring and the Manager. With respect to the
subparagraph (x) of paragraph (c) above, Crowell & Moring may state that their
opinion and belief are based upon their participation in the preparation of the
Prospectus and any amendments or supplements thereto, not including documents
incorporated therein by reference, and their review of the documents
incorporated by reference, but are without independent check or verification,
except as specified. With respect to clauses (2) and (3) of subparagraph (x)
of paragraph (c) above, Brown & Wood may state that their opinion and belief
are based upon their participation in the preparation of the Prospectus and any
amendments or supplements thereto (but not including documents incorporated
therein by reference) and review and discussion of the contents thereof
(including documents incorporated therein by reference), but are without
independent check or verification, except as specified.
e. The Manager shall have received on the Closing Date a letter,
dated the Closing Date, in form and substance satisfactory to the Manager, from
the Company's independent public accountants, containing statements and
information of the type ordinarily included in accountants' "comfort letters"
to underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Prospectus.
5. COVENANTS OF THE COMPANY. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants as
follows:
a. To furnish the Manager, without charge, a signed copy of the
Registration Statement (including exhibits thereto) and to deliver to each
other Underwriter a conformed copy of the Registration Statement (without
exhibits thereto) and, during the period mentioned in paragraph (c) below, as
many copies of the Prospectus, any documents incorporated by reference therein
and any supplements and amendments thereto or to the Registration Statement as
the Manager may reasonably request.
b. Before amending or supplementing the Registration Statement or
the Prospectus with respect to the Offered Securities, to furnish to the
Manager a copy of each such proposed amendment or supplement and not to file
any such proposed amendment or supplement to which the Manager reasonably
objects.
c. If, during such period after the first date of the public
offering of the Offered Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in connection
with sales by an Underwriter or dealer, any event shall occur or condition
exist as a result of
10
<PAGE> 11
which it is necessary to amend or supplement the Prospectus in order to make
the statements therein, in the light of the circumstances when the Prospectus
is delivered to a purchaser, not misleading, or if, in the opinion of counsel
for the Underwriters, it is necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare, file with the Commission and furnish, at
its own expense, to the Underwriters, and to the dealers (whose names and
addresses the Manager will furnish to the Company) to which Offered Securities
may have been sold by the Manager on behalf of the Underwriters and to any
other dealers upon request, either amendments or supplements to the Prospectus
so that the statements in the Prospectus as so amended or supplemented will
not, in the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus, as amended or supplemented,
will comply with law.
d. To endeavor to qualify the Offered Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the Manager
shall reasonably request and to maintain such qualification for as long as the
Manager shall reasonably request.
e. To make generally available to its security holders and to the
Manager as soon as practicable an earning statement covering a twelve month
period beginning on the first day of the first full fiscal quarter after the
date of this Agreement, which earning statement shall satisfy the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder. If such fiscal quarter is the last fiscal quarter of
the Company's fiscal year, such earning statement shall be made available not
later than 90 days after the close of the period covered thereby and in all
other cases shall be made available not later than 45 days after the close of
the period covered thereby.
f. During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the Company or
warrants to purchase debt securities of the Company substantially similar to
the Offered Securities (other than (i) the Offered Securities and (ii)
commercial paper issued in the ordinary course of business), without the prior
written consent of the Manager.
g. Whether or not any sale of Offered Securities is consummated,
to pay all expenses incident to the performance of its obligations under this
Agreement, including: (i) the preparation and filing of the Registration
Statement and the Prospectus and all amendments and supplements thereto, (ii)
the preparation, issuance and delivery of the Offered Securities, (iii) the
reasonable fees and disbursements of the Company's
11
<PAGE> 12
counsel and accountants and of the Trustee and its counsel, (iv) the
qualification of the Offered Securities under securities or Blue Sky laws in
accordance with the provisions of Section 6(d), including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of any Blue Sky or Legal
Investment Memoranda, (v) the printing and delivery to the Underwriters in
quantities as hereinabove stated of copies of the Prospectus and any amendments
or supplements thereto, (vi) any fees charged by rating agencies for the rating
of the Offered Securities, and (vii) the fees and expenses, if any, incurred
with respect to any filing with the National Association of Securities Dealers,
Inc.
6. INDEMNIFICATION AND CONTRIBUTION. a. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Manager expressly for use therein.
b. Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act of Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the Company
to such Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through the
Manager expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendment or supplements thereto.
c. In case any proceedings (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall
12
<PAGE> 13
retain counsel reasonably satisfactory to the indemnified party to represent
the indemnified party and any others the indemnifying party may designate in
such proceedings and shall pay the reasonable fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i)
the indemnifying party and the indemnified party shall have mutually agreed to
the retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them.
It is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by the Manager, in
the case of parties indemnified pursuant to paragraph (a) above, and by the
Company, in the case of parties indemnified pursuant to paragraph (b) above.
The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
d. To the extent the indemnification provided for in paragraph
(a) or (b) of this Section 8 is unavailable to an indemnified party or
insufficient in respect of any losses,
13
<PAGE> 14
claims, damages or liabilities referred to therein, then each indemnifying
party under such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the
offering of the Offered Securities or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other hand in connection
with the offering of the Offered Securities shall be deemed to be in the same
respective proportions as the net proceeds from the offering of such Offered
Securities (before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover of the Prospectus Supplement, bear
to the aggregate public offering price of the Offered Securities. The relative
fault of the Company on the one hand and of the underwriters on the other hand
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or by
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this Section
8 are several in proportion to the respective principal amounts of Offered
Securities they have purchased hereunder, and not joint.
e. The Company and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 8 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account
of the equitable considerations referred to in paragraph (d) above. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claims.
Notwithstanding the provisions of this Section 8, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten by it and distributed to the
public were
14
<PAGE> 15
offered to the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 8 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
7. TERMINATION. This Agreement shall be subject to termination,
by notice given by the Manager to the Company if (a) after the execution and
delivery of the Underwriting Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by, as
the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities or (iv) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crises that, in the judgment of the
Manager, is material and adverse and (b) in the case of any of the events
specified in clauses (a)(i) through (iv), such event, singly or together with
any such event, makes it, in the judgment of the Manager, impracticable to
market the Offered Securities on the terms and in the manner contemplated in
the Prospectus.
8. DEFAULTING UNDERWRITERS. If, on the Closing Date, any one or
more of the Underwriters shall fail or refuse to purchase the Offered
Securities that it has or they have agreed to purchase hereunder on such date,
and the aggregate amount of Offered Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not
more that one-tenth of the aggregate amount of the Offered Securities to be
purchased on such date, the other Underwriters shall be obligated severally in
the proportions that the amount of Offered Securities set forth opposite their
respective names in this Agreement bears to the aggregate amount of Offered
Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Manager may specify, to
purchase the Offered Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; PROVIDED
that in no event shall the amount of Offered Securities that any Underwriter
has agreed to purchase pursuant to this Agreement be increased pursuant to this
Section 10 by an amount in excess of one-ninth of such amount of Offered
15
<PAGE> 16
Securities without the written consent of such Underwriter. If, on the Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase Offered
Securities and the aggregate amount of the Offered Securities with respect to
which such default occurs is more than one-tenth of the aggregate amount of
Offered Securities to be purchased on such date, and arrangement satisfactory
to the Manager and the Company for the purchase of such Offered Securities are
not made within 36 hours after default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Company. In any
such case either the Manager or the Company shall have the right to postpone
the Closing Date but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus
or in any other documents or arrangements may be effected. Any action taken
under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriter in connection with this
Agreement or the offering of the Offered Securities.
9. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
indemnity and contribution agreements and the representations, warranties and
other statements of the Company, its officers and the Underwriters set forth in
this Agreement will remain in full force and effect, regardless of any
termination of this Agreement, any investigation made by or on behalf of any
Underwriter or the Company or any of the officers, directors or controlling
persons referred to in Section 8 and delivery of and payment for the Offered
Securities.
10. SUCCESSORS. This Agreement will enure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 8, and no
other person will have any right or obligation hereunder.
11. COUNTERPARTS. The Underwriting Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
16
<PAGE> 17
12. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
13. HEADINGS. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
17
<PAGE> 18
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
MORGAN STANLEY & CO. INCORPORATED
By: _______________________________
Name:
Title:
SALOMON BROTHERS INC
By: _______________________________
Name:
Title:
Accepted
HARRIS CORPORATION
By:___________________
Name:
Title:
18
<PAGE> 1
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
HARRIS CORPORATION
TO
CHEMICAL BANK
AS TRUSTEE
------------------
INDENTURE
DATED AS OF MAY 1, 1996
------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
HARRIS CORPORATION
Cross-Reference Sheet between Trust Indenture Act of 1939 and Indenture:
<TABLE>
<CAPTION>
SECTIONS OF TRUST
INDENTURE ACT SECTIONS OF INDENTURE
- ---------------------------------------------------- ---------------------
<S> <C>
310(a)............................................ 8.09
310(b)............................................ 8.08 and 8.10
310(c)............................................ Not applicable
311(a)............................................ 8.13
311(b)............................................ 8.13
311(c)............................................ Not applicable
312(a)............................................ 6.01 and 6.02(a)
312(b)............................................ 6.02(b)
312(c)............................................ 6.02(c)
313(a)............................................ 6.04(a)
313(b)............................................ 6.04(b)
313(c)............................................ 6.04(b)
313(d)............................................ 6.04(c)
314(a)............................................ 5.13 and 6.03
314(b)............................................ Not applicable
314(c)............................................ 13.06
314(d)............................................ Not applicable
314(e)............................................ 13.06
315(a)............................................ 8.01
315(b)............................................ 7.07
315(c)............................................ 8.01
315(d)............................................ 8.01
315(e)............................................ 7.08
316(a)............................................ 7.01, 7.06 and 9.04
316(b)............................................ 7.04, 7.06 and 11.02
317(a)............................................ 7.02
317(b)............................................ 5.08
318(a)............................................ 13.07
</TABLE>
- ---------------
NOTE: The above cross-reference sheet shall not, for any purpose, be deemed to
be a part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
------------------
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
PARTIES........................................................... 1
RECITALS:
Compliance with legal requirements........................... 1
Purpose of and consideration for Indenture................... 1
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Certain terms defined; the other terms defined in
Trust Indenture Act of 1939 or by reference
therein in Securities Act of 1933 to have
meanings therein assigned....................... 1
Attributable Debt................................. 1
Board of Directors................................ 2
Board Resolution.................................. 2
Business Day...................................... 2
Company........................................... 2
Company Order..................................... 2
Consolidated Net Worth............................ 2
Depositary........................................ 3
Event of Default.................................. 3
Exchange Act...................................... 3
Funded Debt....................................... 3
Global Security................................... 3
Holder, Security Holder........................... 3
Indenture......................................... 3
Officers' Certificate............................. 3
Opinion of Counsel................................ 4
Original Issue Discount Security.................. 4
Outstanding....................................... 4
Person............................................ 5
Principal Property................................ 5
Responsible officer............................... 5
Restricted Subsidiary............................. 5
Security or Securities............................ 5
Security Register................................. 5
Security Registrar................................ 5
Subsidiary........................................ 5
Trust Indenture Act of 1939....................... 6
</TABLE>
- ---------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
<PAGE> 4
ii
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
Trustee........................................... 6
Yield to Maturity................................. 6
Wholly-owned Restricted Subsidiary................ 6
ARTICLE TWO
SECURITIES
SECTION 2.01. Forms generally................................... 6
SECTION 2.02. Form of Trustee's certificate..................... 7
SECTION 2.03. Amounts unlimited; issuable in Series............. 7
SECTION 2.04. Authentication and delivery of Securities......... 8
SECTION 2.05. Execution of Securities........................... 10
SECTION 2.06. Certificate of Authentication..................... 11
SECTION 2.07. Denomination and date of securities; payments of
interest........................................ 11
SECTION 2.08. Registration, transfer and exchange............... 12
SECTION 2.09. Mutilated, defaced, destroyed, lost and stolen
Securities...................................... 14
SECTION 2.10. Cancellation of Securities; destruction thereof... 15
SECTION 2.11. Temporary securities.............................. 15
ARTICLE THREE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 3.01. Applicability of Article.......................... 16
SECTION 3.02. Notice of redemption; partial redemption.......... 16
SECTION 3.03. Payment of Securities called for redemption....... 17
SECTION 3.04. Exclusion of certain Securities from eligibility
for selection for redemption.................... 17
SECTION 3.05. Mandatory and optional sinking funds.............. 18
ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE;
DEPOSITED MONEYS AND GOVERNMENT OBLIGATIONS
SECTION 4.01. Satisfaction and discharge of Indenture by
defeasance of Securities........................ 20
SECTION 4.02. Satisfaction and discharge of Indenture under
other conditions................................ 21
SECTION 4.03. Survival of certain obligations................... 22
SECTION 4.04. Application of trust moneys....................... 22
SECTION 4.05. Repayment to Company.............................. 22
SECTION 4.06. Reinstatement..................................... 23
</TABLE>
<PAGE> 5
iii
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
ARTICLE FIVE
PARTICULAR COVENANTS OF THE COMPANY
SECTION 5.01. Payment of principal of and interest on
Securities........................................ 23
SECTION 5.02. Maintenance of offices and agencies for
Securities........................................ 24
SECTION 5.03. Company not to extend time of payment of claims
for interest...................................... 24
SECTION 5.04. Due authorization of Securities..................... 24
SECTION 5.05. Company and Restricted Subsidiaries to maintain
insurance......................................... 24
SECTION 5.06. Payment of taxes and governmental charges........... 25
Maintenance of properties........................... 25
SECTION 5.07. Company to appoint successor Trustee and Agents..... 25
SECTION 5.08. Appointment of paying agent other than Trustee...... 25
SECTION 5.09. Covenant to maintain corporate existence............ 27
SECTION 5.10. Limitation on sales and leasebacks.................. 27
SECTION 5.11. Negative pledge..................................... 28
SECTION 5.12. Covenant of further assurances...................... 31
SECTION 5.13. Officer's Certificate as to performance of
covenants; Notice of certain defaults............. 31
ARTICLE SIX
SECURITY HOLDERS' LIST AND REPORTS BY THE COMPANY
AND THE TRUSTEE
SECTION 6.01. Company to furnish Trustee information as to names
and addresses of Security Holders................. 31
SECTION 6.02. (a) Trustee to preserve information as to names
and addresses of Security Holders............... 32
Trustee may destroy list of Security Holders on
certain conditions.............................. 32
(b) Trustee to make information as to names and
addresses of Security Holders available to
"applicants" or to mail communications to
Security Holders in certain circumstances....... 32
Procedure if Trustee elects not to make
information available to applicants............. 32
(c) Company and Trustee not accountable for
disclosure of information....................... 33
SECTION 6.03. (a) Annual and other reports to be filed by
Company with Trustee............................ 33
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(b) Additional information and reports to be filed
with Trustee and Securities and Exchange
Commission.................................... 33
(c) Summaries of information and reports to be
transmitted by Company to Security Holders.... 33
SECTION 6.04. Reports by Trustee................................ 34
ARTICLE SEVEN
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS
UPON EVENT OF DEFAULT
SECTION 7.01. Events of Default defined......................... 34
Acceleration of maturity upon Event of Default.... 35
Waiver of default and rescission of declaration of
maturity........................................ 36
Restoration of former position and rights upon
curing default.................................. 36
SECTION 7.02. Covenant of Company to pay to Trustee whole amount
due on Securities on default in payment of
interest or principal (and premium, if any)..... 37
Trustee may recover judgment for whole amount due
on Securities on failure of Company to pay...... 37
Trustee may institute appropriate judicial
proceedings to protect and enforce rights....... 37
Filing of proof of claim by Trustee in bankruptcy,
reorganization, receivership, or other judicial
proceedings..................................... 38
Rights of action and of asserting claims may be
enforced by Trustee without possession of
Securities...................................... 38
SECTION 7.03. Application of moneys collected by Trustee........ 39
SECTION 7.04. Limitation on suits by Holders of Securities...... 39
SECTION 7.05. Delay or omission in exercise of rights not waiver
of default...................................... 40
SECTION 7.06. Rights of Holders of majority in principal amount
of Securities to direct Trustee................. 40
Rights of Holders of majority in principal amount
of Securities to waive certain defaults......... 41
SECTION 7.07. Trustee to give notice of defaults known to it,
but may withhold in certain circumstances....... 41
SECTION 7.08. Requirement of an undertaking to pay costs in
certain suits under Indenture or against
Trustee......................................... 42
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ARTICLE EIGHT
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee prior to and after Event of
Default......................................... 42
Trustee to examine evidence for compliance with
Indenture....................................... 42
Trustee not relieved from liability for negligence
or wilful misconduct except as provided in this
Section......................................... 42
(a) Prior to Event of Default and after the curing
of all Events of Default which may have
occurred...................................... 42
(i) Trustee not liable except for performance of
duties specifically set forth............ 43
(ii) In absence of bad faith, Trustee may con-
clusively rely on certificates or opinions
furnished it hereunder................... 43
(b) Trustee not liable for error of judgment made
in good faith by responsible officer unless
Trustee negligent............................. 43
(c) Trustee not liable for action or non-action in
accordance with direction of Holders of
majority in principal amount of Securities.... 43
SECTION 8.02. Except as otherwise provided in Section 8.01...... 43
(a) Trustee may rely on documents believed genuine
and properly signed or presented.............. 43
(b) Sufficient evidence by certain instruments
provided for.................................. 43
(c) Trustee may act on Opinion of Counsel......... 44
(d) Trustee may require indemnity from Security
Holders....................................... 44
(e) Trustee not liable for actions in good faith
believed to be authorized..................... 44
(f) Investigations of facts by Trustee............ 44
(g) Trustee may act through agents................ 44
SECTION 8.03. Trustee not liable for recitals in Indenture or in
Securities...................................... 44
No representations by Trustee as to validity of
Indenture or of Securities...................... 44
Trustee not accountable for use of Securities or
proceeds........................................ 44
SECTION 8.04. Trustee, paying agent or Security Registrar may
own Securities.................................. 45
SECTION 8.05. Moneys received by Trustee to be held in trust.... 45
SECTION 8.06. Trustee entitled to compensation, reimbursement
and indemnity................................... 45
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Obligations to Trustee to be secured by lien prior
to Securities................................... 45
SECTION 8.07. Right of Trustee to rely on certificate of
officers of Company where no other evidence
specifically prescribed......................... 46
SECTION 8.08. Trustee acquiring conflicting interest to
eliminate conflict or resign.................... 46
SECTION 8.09. Requirements for eligibility of Trustee........... 46
SECTION 8.10. (a) Resignation of Trustee........................ 46
(b) Removal of Trustee by Company or by court on
Security Holder's application................. 47
(c) Removal of Trustee by Holders of majority in
principal amount amount of Securities......... 47
(d) Time when resignation or removal of Trustee
effective..................................... 47
(e) Notice of resignation or removal.............. 47
SECTION 8.11. Acceptance by successor to Trustee................ 48
Eligibility and qualification of successor
trustee......................................... 48
SECTION 8.12. Successor to Trustee by merger, consolidation or
succession to business.......................... 48
SECTION 8.13. Preferential collection of claims against the
Company......................................... 49
ARTICLE NINE
CONCERNING THE SECURITY HOLDERS
SECTION 9.01. Evidence of action of Security Holders............ 49
SECTION 9.02. Proof of execution of instruments and holding of
Securities...................................... 49
SECTION 9.03. Who may be deemed owners of Securities............ 50
SECTION 9.04. Securities owned by Company or controlled or
controlling persons disregarded for certain
purposes........................................ 50
SECTION 9.05. Action by Security Holders binds future Holders... 50
ARTICLE TEN
SECURITY HOLDERS' MEETINGS
SECTION 10.01. Purposes for which meetings may be called......... 51
SECTION 10.02. Manner of calling meetings........................ 51
SECTION 10.03. Call of meetings by Company or Security Holders... 51
SECTION 10.04. Who may attend and vote at meetings............... 52
SECTION 10.05. Regulations may be made by Trustee................ 52
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Conduct of the meeting............................ 52
Voting rights -- adjournment...................... 52
SECTION 10.06. Manner of voting at meetings and record to be
kept............................................ 53
SECTION 10.07. Exercise of rights of Trustee or Security Holders
may not be hindered or delayed by call of
meeting of Security Holders..................... 53
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
SECTION 11.01. Purposes for which supplemental indenture may be
entered into without consent of Security
Holders......................................... 53
SECTION 11.02. Modification of Indenture with consent of Holders
of 66 2/3% in principal amount of Securities.... 54
SECTION 11.03. Effect of supplemental indentures................. 55
SECTION 11.04. Securities may bear notation of changes........... 56
SECTION 11.05. Opinion of Counsel................................ 56
ARTICLE TWELVE
CONSOLIDATION, MERGER OR SALE
SECTION 12.01. Securities to be secured in certain cases on
consolidation, merger or sale................... 56
SECTION 12.02. Securities and Indenture to be assumed by
successor on consolidation, merger or sale...... 57
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors and assigns of Company bound by
Indenture....................................... 58
SECTION 13.02. Acts of board, committee or officers of successor
corporation valid............................... 58
SECTION 13.03. Surrender of powers by Company.................... 58
SECTION 13.04. Required notices or demands may be served by
mail............................................ 58
SECTION 13.05. Payments due on Sundays or holidays............... 59
SECTION 13.06. Officers' Certificate and Opinion of Counsel to be
furnished upon applications of demands by
Company......................................... 59
Statements to be included in each certificate or
opinion with respect to compliance with
condition or covenant........................... 59
SECTION 13.07. Provisions of Trust Indenture Act of 1939 to
control......................................... 60
SECTION 13.08. Substituted publication or notice................. 60
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SECTION 13.09. Effect of invalidity of provisions................ 60
SECTION 13.10. Indenture to be construed in accordance with New
York law........................................ 60
SECTION 13.11. Incorporators, stockholders, officers and
directors of Company exempt from individual
liability....................................... 60
SECTION 13.12. Provisions of Indenture for the sole benefit of
parties and Holders of Securities............... 60
SECTION 13.13. Indenture may be executed in counterparts......... 61
ACCEPTANCE OF TRUST BY TRUSTEE.................................... 62
TESTIMONIUM....................................................... 62
SIGNATURES AND SEALS.............................................. 62
ACKNOWLEDGMENTS................................................... 63
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<PAGE> 11
INDENTURE, dated as of May 1, 1996, between HARRIS CORPORATION, a
corporation duly organized and existing under the laws of the State of Delaware
(hereinafter sometimes called the "Company"), party of the first part, and
CHEMICAL BANK, a New York banking corporation (hereinafter sometimes called the
"Trustee"), party of the second part.
WHEREAS, the Company is empowered to issue securities for any of the
objects and purposes of the Company; and
WHEREAS, for its lawful corporate purposes, the Company has duly authorized
the issue from time to time of its unsecured debentures, notes or other
evidences of indebtedness to be issued in one or more series (hereinafter
referred to as the "Securities"), up to such principal amount or amounts as may
from time to time be authorized in accordance with the terms of this Indenture;
and
WHEREAS, all acts and things necessary to make the Securities, when
executed by the Company and authenticated and delivered by the Trustee as in
this Indenture provided, the valid, binding and legal obligations of the
Company, and to constitute these presents a valid indenture and agreement, have
been done and performed, and the execution of this Indenture and the issue
hereunder of the Securities have in all respects been duly authorized, and the
Company, in the exercise of the legal right and power in it vested, executes
this Indenture and proposes to make, execute, issue and deliver the Securities;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
In consideration of the premises and of the purchase and acceptance of the
Securities by the holders thereof, the Company covenants and agrees with the
Trustee for the equal and proportionate benefit of the respective holders from
time to time of the Securities, as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. The terms defined in this Section 1.01 (except as in this
Indenture otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section 1.01. All other
terms used in this Indenture which are defined in the Trust Indenture Act of
1939 or which are by reference in such Act defined in the Securities Act of 1933
(except as herein otherwise expressly provided or unless the context otherwise
requires) shall have the meanings assigned to such terms in said Trust Indenture
Act and in said Securities Act as in force at the date of this instrument as
originally executed.
Attributable Debt:
The term "Attributable Debt" when used with respect to any sale and
leaseback transaction shall mean, at the time of determination, the present
value (discounted at
<PAGE> 12
2
the rate of interest implicit in the terms of the lease) of the obligation of
the lessee for net 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). As used in the preceding sentence, "net
rental payments" under any lease for any period shall mean the sum of the rental
and other payments required to be paid in such period by the lessee thereunder,
not including, however, any amounts required to be paid by such lessee (whether
or not designated as rental or additional rental) on account of maintenance and
repairs, insurance, taxes, assessments, water rates or similar charges required
to be paid by such lessee thereunder or any amounts required to be paid by such
lessee thereunder contingent upon the amount of sales, maintenance and repairs,
insurance, taxes, assessments, water rates or similar charges.
Board of Directors:
The term "Board of Directors" shall mean the Board of Directors of the
Company or the Executive Committee thereof.
Board Resolution:
The term "Board Resolution" shall mean a copy of one or more resolutions,
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, and
delivered to the Trustee.
Business Day:
The term "Business Day" shall mean any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking institutions
are authorized or required by law or regulation to close in the City of New York
or, with respect to any Securities bearing interest calculated by reference to
LIBOR, in the City of London.
Company:
The term "Company" shall mean Harris Corporation and, subject to the
provisions of Article Twelve, in lieu of or in addition to Harris Corporation,
as the case may be, its successors and assigns.
Company Order:
The term "Company Order" shall mean a written statement, request or order
of the Company signed in its name by the Chairman of the Board, the President or
any Vice President of the Company.
Consolidated Net Worth:
The term "Consolidated Net Worth" shall mean the stockholders' equity of
the Company and its consolidated Subsidiaries, as shown on the audited
consolidated balance sheet in the Company's latest annual report to
stockholders.
<PAGE> 13
3
Depositary:
The term "Depositary" shall mean, with respect to the Securities of any
series issuable in the form of one or more Global Securities, the Person
designated as Depositary by the Company pursuant to Section 2.03 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Securities of any
such series shall mean the Depositary with respect to the Global Securities of
that series.
Event of Default:
The term "Event of Default" shall mean any event specified in Section 7.01
continued for the period of time, if any, therein designated.
Exchange Act:
The term "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
Funded Debt:
The term "Funded Debt" shall mean all indebtedness issued, incurred,
assumed or guaranteed by the Company or a Restricted Subsidiary, or for the
payment of which it is otherwise primarily or secondarily liable, maturing by
its terms more than one year from the date of the creation thereof or renewable
or refundable at the option of the obligor to a date more than one year from the
date of the original creation thereof.
Global Security:
The term "Global Security" shall mean a security evidencing all or a part
of a series of Securities issued to the Depositary for such series in accordance
with Section 2.04 and bearing the legend prescribed in Section 2.04.
Holder, Security Holder:
The terms "Holder" and "Security Holder" or similar terms shall mean the
person in whose name such Security is registered in the Security Register kept
by the Company for that purpose in accordance with the terms hereof.
Indenture:
The term "Indenture" shall mean this instrument as originally executed, or,
if amended or supplemented, as so amended or supplemented.
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate signed by the
Chairman of the Board or the President or a Vice President and by the Treasurer
or an Assistant
<PAGE> 14
4
Treasurer or the Controller or the Secretary or an Assistant Secretary of the
Company. Each such certificate shall include the statements provided for in
Section 13.06, if and to the extent required by the provisions thereof.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing signed by
legal counsel who shall be satisfactory to the Trustee, and who may be an
employee of or counsel to the Company. Each such opinion shall include the
statements provided for in Section 13.06, if and to the extent required by the
provisions thereof.
Original Issue Discount Security:
The term "Original Issue Discount Security" shall mean any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 7.01.
Outstanding:
The term "Outstanding", when used with reference to Securities, shall,
subject to the provisions of Section 9.04, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except:
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities for the payment or redemption of which moneys in the
necessary amount shall have been deposited in trust with the Trustee or
with any paying agent (other than the Company); provided that if such
Securities are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as in Article Three provided, or provision
satisfactory to the Trustee shall have been made for giving such notice;
and
(c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to the
terms of Section 2.09, unless proof satisfactory to the Trustee is
presented that any such Securities are held by holders in due course;
provided, however, that in determining whether the Holders of the requisite
principal amount of Securities outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee 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 which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
affiliate of the Company or such other obligor.
<PAGE> 15
5
Person:
The term "person" shall mean any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Principal Property:
The term "Principal Property" shall mean any manufacturing plant located
within the United States of America (other than its territories or possessions)
and owned or leased by the Company or any Subsidiary, except any such plant
that, in the opinion of the Board of Directors of the Company, is not of
material importance to the business conducted by the Company and its
Subsidiaries, taken as a whole.
Responsible officer:
The term "responsible officer" when used with respect to the Trustee shall
mean the president, any vice president, any assistant vice president, any trust
officer, or any other officer of the Trust Division of the Trustee with direct
responsibility for the administration of this Indenture.
Restricted Subsidiary:
The term "Restricted Subsidiary" shall mean any Subsidiary that owns or
leases a Principal Property.
Security or Securities:
The term "Security" or "Securities" shall mean any Security or Securities,
as the case may be, authenticated and delivered under this Indenture.
Security Register:
The term "Security Register" shall mean the register kept, or caused to be
kept, by the Company with the Security Registrar pursuant to Section 2.08.
Security Registrar:
The term "Security Registrar" shall mean the office or agency appointed and
maintained by the Company pursuant to Section 5.02.
Subsidiary:
The term "Subsidiary" shall mean any corporation of which the Company, or
the Company and one or more Subsidiaries, or any one or more Subsidiaries,
directly or indirectly own at the time (i) more than fifty per cent (50%) of the
outstanding capital stock having under ordinary circumstances (not dependent
upon the happening of a contingency) voting power in the election of members of
the board of directors, managers or trustees of said corporation, and (ii)
securities having at such time voting
<PAGE> 16
6
power to elect at least a majority of the members of the board of directors,
managers or trustees of said corporation.
Trust Indenture Act of 1939:
The term "Trust Indenture Act of 1939", subject to the provisions of
Sections 11.01 and 11.02, shall mean the Trust Indenture Act of 1939 as in force
at the date of execution of this instrument as originally executed.
Trustee:
The term "Trustee" shall mean the Trustee under this Indenture for the time
being, whether original or successor.
Yield to Maturity:
The term "Yield to Maturity" shall mean the yield to maturity on a series
of Securities, calculated at the time of issuance of such series or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
Wholly-owned Restricted Subsidiary:
The term "Wholly-owned Restricted Subsidiary" shall mean a Restricted
Subsidiary all of the outstanding capital stock of which, other than directors'
qualifying shares, and all of the Funded Debt of which, shall at the time be
owned by the Company or by one or more Wholly-owned Restricted Subsidiaries, or
by the Company in conjunction with one or more Wholly-owned Restricted
Subsidiaries.
ARTICLE TWO
SECURITIES
SECTION 2.01 The Securities of each series shall be substantially in such
form (not inconsistent with this Indenture) as shall be established by or
pursuant to one or more Board Resolutions (as set forth in a Board Resolution
or, to the extent established pursuant to rather than set forth in a Board
Resolution, an Officers' Certificate detailing such establishment) 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 imprinted or otherwise reproduced
thereon such legend or legends or endorsements, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law or with
any rules or regulations pursuant thereto, or with any rules of any securities
exchange or to conform to general usage, all as may be determined by the
officers executing such Securities as evidenced by their execution of such
Securities.
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.
<PAGE> 17
7
SECTION 2.02 The Trustee's certificate of authentication on all Securities
shall be in substantially the following form:
This is one of the Securities of the series designated herein and referred
to in the within-mentioned Indenture.
CHEMICAL BANK
as Trustee
By:___________________________
Authorized Officer
SECTION 2.03 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, and each such series
shall rank equally and pari passu with all other unsecured and unsubordinated
debt of the Company. There shall be established in or pursuant to one or more
Board Resolutions and set forth in a Board Resolution or, to the extent
established pursuant to (rather than set forth in) a Board Resolution, in one or
more Officers' Certificates detailing such establishment, and/or established in
one or more indentures supplemental hereto, prior to the initial issuance of
Securities of any series,
(a) the designation of the Securities of the series (which may be part
of a series of Securities previously issued);
(b) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.08, 2.09, 2.11, 3.03 or 11.04);
(c) any date on which the principal of the Securities of the series is
payable;
(d) the rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest shall accrue,
on which such interest shall be payable and on which a record shall be
taken for the determination of Holders to whom interest is payable and/or
the method by which such rate or rates or date or dates shall be
determined;
(e) the place or places where the principal of, premium, if any, and
any interest on Securities of the series shall be payable (if other than as
provided in Section 5.02);
(f) the price or prices at which, the period or periods within 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, pursuant to
any sinking fund or otherwise;
(g) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any mandatory redemption,
sinking fund or
<PAGE> 18
8
analogous provisions or at the option of a Holder thereof and the price or
prices at which and the period or periods within which and any terms and
conditions upon which Securities of the series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such obligation;
(h) if other than denominations of $1,000 or any amount in excess
thereof which is an integral multiple of $1,000, the denominations in which
Securities of the series shall be issuable;
(i) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the maturity thereof;
(j) whether the Securities of the series will be issuable as Global
Securities;
(k) whether and under what circumstances the Company will pay
additional amounts on the Securities of the series held by a person who is
not a U.S. person in respect of any tax, assessment or governmental charge
withheld or deducted and, if so, whether the Company will have the option
to redeem such Securities rather than pay such additional amounts;
(l) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security
or Global Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, then
the form and terms of such certificates, documents or conditions;
(m) any trustees, depositaries, authenticating or paying agents,
transfer agents, calculation agent (if any), or registrars or any other
agents with respect to the Securities of such series;
(n) any other events of default or covenants with respect to the
Securities of such series; and
(o) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All securities of any one series need not be issued at the same time and
may be issued from time to time, consistent with the terms of this Indenture, if
so provided by or pursuant to such Board Resolution, such Officers' Certificate
or any such indenture supplemental hereto.
SECTION 2.04 The Company may deliver Securities of any series executed by
the Company to the Trustee for authentication together with the applicable
documents referred to below in this Section, and the Trustee shall thereupon
authenticate and deliver such Securities to or upon the order of the Company
(contained in the Company Order referred to below in this Section) or pursuant
to such procedures acceptable to the Trustee and to such recipients as may be
specified from time to time by a Company Order. The maturity date, original
issue date, interest rate and any other terms of the Securities of such series
shall be determined by or pursuant to such Company Order and procedures. If
provided for in such procedures, such Company Order may authorize authentication
and delivery pursuant to oral instructions from the
<PAGE> 19
9
Company or its duly authorized agent, which instructions shall be promptly
confirmed in writing. In authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to such Securities
the Trustee shall receive, and (subject to Section 8.01) shall be fully
protected in relying upon:
(a) a Company Order requesting such authentication and setting forth
delivery instructions if the Securities are not to be delivered to the
Company;
(b) any Board Resolution, Officers' Certificate and/or executed
supplemental indenture referred to in Sections 2.01 and 2.03 by or pursuant
to which the forms and terms of such Securities were established;
(c) an Officers' Certificate setting forth the form or forms and terms
of the Securities stating that the form or forms and terms of the
Securities have been established pursuant to Section 2.01 and 2.03 and
comply with this Indenture, and covering such other matters as the Trustee
may reasonably request; and
(d) At the option of the Company, either an Opinion of Counsel, or a
letter addressed to the Trustee permitting it to rely on an Opinion of
Counsel, substantially to the effect that:
(i) the forms of the Securities have been duly authorized and
established in conformity with the provisions of this Indenture;
(ii) certain terms of the Securities have been established
pursuant to a Board Resolution, an Officer's Certificate or a
supplemental indenture in accordance with this Indenture, and when such
other terms as are to be established pursuant to procedures set forth in
a Company Order shall have been established, all such terms will have
been duly authorized by the Company and will have been established in
conformity with the provisions of this Indenture;
(iii) when the Securities have been executed by the Company and
authenticated by the Trustee in accordance with the provisions of this
Indenture and delivered to and duly paid for by the purchasers thereof,
they will have been duly issued under this Indenture and will be valid
and legally binding obligations of the Company, enforceable in
accordance with their respective terms, and will be entitled to the
benefits of this Indenture; and
(iv) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Securities will
not contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company that is material to the Company, or,
to the best of such counsel's knowledge, any judgment, order or decree
of any governmental body, agency or court having jurisdiction over the
Company, and no consent, approval or authorization of any governmental
body or agency is required for the performance by the Company of its
obligations under the Securities, except such as are specified and have
been obtained and such as may be required by the securities or blue sky
laws of the various states in connection with the offer and sale of the
Securities.
<PAGE> 20
10
In rendering such opinions, such counsel may qualify any opinions as to
enforceability by stating that such enforceabilty may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar laws
affecting the rights and remedies of creditors and is subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law). Such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the State of New York and the
federal law of the United States, upon opinions of other counsel (copies of
which shall be delivered to the Trustee), who shall be counsel reasonably
satisfactory to the Trustee, in which case the opinion shall state that such
counsel believes he and the Trustee are entitled so to rely. Such counsel may
also state that, insofar as such opinion involves factual matters, he has
relied, to the extent he deems proper, upon certificates of officers of the
Company and its subsidiaries and certificates of public officials.
The Trustee shall have the right to decline to authenticate and deliver any
Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken by the Company or if the
Trustee in good faith by its board of directors or board of trustees, executive
committee, or a trust committee of directors or trustees or responsible officers
shall determine that such action would expose the Trustee to personal liability
to existing Holders or would affect the Trustee's own rights, duties or
immunities under the Securities, this Indenture or otherwise.
If the Company shall establish pursuant to Section 2.03 that the Securities
of a series are to be issued in the form of one or more Global Securities, then
the Company shall execute and the Trustee shall, in accordance with this Section
and the Company Order with respect to such series, authenticate and deliver one
or more Global Securities that (a) shall represent and shall be denominated in
an amount equal to the aggregate principal amount of all of the Securities of
such series issued and not yet cancelled, (b) shall be registered in the name of
the Depositary for such Global Security or Securities or the nominee of such
Depositary, (c) shall be delivered by the Trustee to such Depositary or pursuant
to such Depositary's instruction and (d) shall bear a legend substantially to
the following effect: "This Security may not be transferred except as a whole by
the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or a successor of the Depositary or a nominee of such
successor."
Each Depositary designated pursuant to Section 2.03 must, at the time of
its designation and at all times while it serves as Depositary, be a clearing
agency registered under the Exchange Act and any other applicable statute or
regulation.
SECTION 2.05 The Securities shall be signed on behalf of the Company by
the chairman of its Board of Directors or any vice chairman of its Board of
Directors or its president or any vice president or its secretary or treasurer,
under its corporate seal which may, but need not, be attested. Such signatures
may be the manual or facsimile signatures of the present or any future such
officers. The seal of the Company may be in the form of a facsimile thereof and
may be impressed, affixed, imprinted or otherwise reproduced on the Securities.
Typographical and other minor errors or defects in any such reproduction of the
seal or any such signature shall not affect the
<PAGE> 21
11
validity or enforceability of any Security that has been duly authenticated and
delivered by the Trustee.
In case any officer of the Company who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Company, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Company; and any Security may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Company, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
SECTION 2.06 Only such Securities as shall bear thereon a certificate of
authentication substantially in the form set forth in Section 2.02 hereof,
executed by the Trustee by the manual signature of one of its authorized
representatives, shall be entitled to the benefits of this Indenture or be valid
or obligatory for any purpose. The execution of such certificate by the Trustee
upon any Security executed by the Company shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this Indenture.
SECTION 2.07 The Securities of each series shall be issuable in
denominations established as contemplated by Section 2.03 or, if not so
established, in denominations of $1,000 and any integral multiple of $1,000 in
excess thereof. The Securities of each series shall be numbered, lettered or
otherwise distinguished in such manner or in accordance with such plan as the
officers of the Company executing the same may determine with the approval of
the Trustee, as evidenced by the execution and authentication thereof.
Each Security shall be dated the date of its authentication.
The person in whose name any Security of any series is registered at the
close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the extent
the Company shall default in the payment of the interest due on such interest
payment date for such series, in which case such defaulted interest shall be
paid to the persons in whose names Outstanding Securities for such series are
registered at the close of business on a subsequent record date (which shall be
not less than five Business Days prior to the date of payment of such defaulted
interest) established by notice given by mail by or on behalf of the Company to
the Holders of Securities not less than fifteen days preceding such subsequent
record date. The term "record date" as used with respect to any interest payment
date (except a date for payment of defaulted interest) for the Securities of any
series shall mean the date specified as such in the terms of the Securities of
such series established as contem-
<PAGE> 22
12
plated by Section 2.03, or, if no such date is so established, the date fifteen
calendar days prior to an interest payment date (whether or not a Business Day).
SECTION 2.08 The Company will keep at each office or agency to be
maintained for the purpose as provided in Section 5.02 for each series of
Securities a register or registers in which, subject to such reasonable
regulations as it may prescribe, it will provide for the registration of
Securities of such series and the registration of transfer of Securities of such
series. At all reasonable times such register or registers shall be open for
inspection by the Trustee.
Upon due presentation for registration of transfer of any Security of any
series at any such office or agency to be maintained for the purpose as provided
in Section 5.02, the Company shall execute and the Trustee shall authenticate
and deliver in the name of the transferee or transferees a new Security or
Securities of the same series, maturity date, interest rate and original issue
date and other terms in authorized denominations for a like aggregate principal
amount.
At the option of the Holder thereof, Securities of any series (except a
Global Security) may be exchanged for a Security or Securities of such series
having authorized denominations and an equal aggregate principal amount, upon
surrender of such Securities to be exchanged at the agency of the Company that
shall be maintained for such purpose in accordance with Section 5.02 and upon
payment, if the Company shall so require, of the charges hereinafter provided.
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
surrendered upon any exchange or registration of transfer provided for in this
Indenture shall be promptly cancelled and disposed of by the Trustee and the
Trustee will deliver a certificate of disposition thereof to the Company.
All Securities presented for registration of transfer, exchange, redemption
or payment shall (if so required by the Company or the Trustee) be duly endorsed
by, or be accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder or his
attorney duly authorized in writing.
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 exchange or
registration of transfer of Securities. No service charge shall be made for any
such transaction.
The Company shall not be required to exchange or register a transfer of (a)
any Securities of any series for a period of fifteen days next preceding the
first mailing of notice of redemption of Securities of such series to be
redeemed or (b) any Securities selected, called or being called for redemption,
in whole or in part, except, in the case of any Security to be redeemed in part,
the portion thereof not so to be redeemed.
Notwithstanding any other provision of this Section 2.08, unless and until
it is exchanged in whole or in part for Securities in definitive registered
form, a Global
<PAGE> 23
13
Security representing all or a portion of the Securities of a series may not be
transferred except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor Depositary.
If at any time the Depositary for any Securities of a series represented by
one or more Global Securities notifies the Company that it is unwilling or
unable to continue as Depositary for such Securities or if at any time the
Depositary for such Securities shall no longer be eligible under Section 2.04,
the Company shall appoint a successor Depositary with respect to such
Securities. If a successor Depositary for such Securities is not appointed by
the Company within ninety days after the Company receives such notice or becomes
aware of such ineligibility, the Company's election pursuant to Section 2.03
that such Securities be represented by one or more Global Securities shall no
longer be effective and the Company will execute, and the Trustee, upon receipt
of an Officers' Certificate for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver, Securities of such
series in definitive registered form, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such Securities in exchange for such Global Security
or Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by a Global Security or Securities. In such event
the Company will execute, and the Trustee, upon receipt of an Officers'
Certificate for the authentication and delivery of definitive Securities of such
series, will authenticate and deliver, Securities of such series in definitive
registered form, in any authorized denominations, in an aggregate principal
amount equal to the principal amount of the Global Security or Securities
representing such Securities, in exchange for such Global Security or
Securities.
If specified by the Company pursuant to Section 2.03 with respect to
Securities represented by a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole or in part for
Securities of the same series in definitive registered form on such terms as are
acceptable to the Company and such Depositary. Thereupon, the Company shall
execute, and the Trustee shall authenticate and deliver, without service charge,
(a) to the Person specified by such Depositary a new Security or
Securities of the same series, of any authorized denomination as requested
by such Person, in an aggregate principal amount equal to and in exchange
for such Person's beneficial interest in the Global Security; and
(b) to such Depositary a new Global Security in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities
authenticated and delivered pursuant to clause (a) above.
<PAGE> 24
14
Upon the exchange of a Global Security for Securities in definitive
registered form, in authorized denominations, such Global Security shall be
cancelled by the Trustee. Securities in definitive registered form issued in
exchange for a Global Security pursuant to this Section 2.08 shall be registered
in such names and in such authorized denominations as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Securities to or as directed by the Persons in whose names such Securities
are so registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
SECTION 2.09 In case any temporary or definitive Security shall become
mutilated, defaced or be destroyed, lost or stolen, the Company in its
discretion may execute, and upon the written request of any officer of the
Company, the Trustee shall authenticate and deliver a new Security of the same
series, maturity date, interest rate and original issue date, bearing a number
or other distinguishing symbol not contemporaneously outstanding, in exchange
and substitution for the mutilated or defaced Security, or in lieu of and in
substitution for the Security so destroyed, lost or stolen. In every case the
applicant for a substitute Security shall furnish to the Company and to the
Trustee and any agent of the Company or the Trustee such security or indemnity
as may be required by them to indemnify and defend and to save each of them
harmless and, in every case of destruction, loss or theft, evidence to their
satisfaction of the destruction, loss or theft of such Security and of the
ownership thereof and in the case of mutilation or defacement shall surrender
the Security to the Trustee or such agent.
Upon the issuance of any substitute Security, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith. In case any Security which has
matured or is about to mature or has been called for redemption in full shall
become mutilated or defaced or be destroyed, lost or stolen, the Company may
instead of issuing a substitute Security, pay or authorize the payment of the
same (without surrender thereof except in the case of a mutilated or defaced
Security), if the applicant for such payment shall furnish to the Company and to
the Trustee and any agent of the Company or the Trustee such security or
indemnity as any of them may require to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Company and the Trustee and any agent of the Company or the Trustee evidence
to their satisfaction of the destruction, loss or theft of such Security and of
the ownership thereof.
Every substitute Security of any series issued pursuant to the provisions
of this Section by virtue of the fact that any such Security is destroyed, lost
or stolen shall constitute an 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 (but shall be
subject to all the limitations of rights set
<PAGE> 25
15
forth in) this Indenture equally and proportionately with any and all other
Securities of such series duly authenticated and delivered hereunder. All
Securities shall be held and owned upon the express condition that, to the
extent permitted by law, the foregoing provisions are exclusive with respect to
the replacement or payment of mutilated, defaced or destroyed, lost or stolen
Securities and shall preclude any and all other rights or remedies
notwithstanding any law or statute existing or hereafter enacted to the contrary
with respect to the replacement or payment of negotiable instruments or other
securities without their surrender.
SECTION 2.10 All Securities surrendered for payment, redemption,
registration of transfer or exchange, or for credit against any payment in
respect of a sinking or analogous fund, if surrendered to the Company or any
agent of the Company or the Trustee, shall be delivered to the Trustee for
cancellation or, if surrendered to the Trustee, shall be cancelled by it; and no
Securities shall be issued in lieu thereof except as expressly permitted by any
of the provisions of this Indenture. The Trustee shall dispose of cancelled
Securities held by it and deliver a certificate of disposition to the Company.
If the Company shall acquire any of the Securities, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by such
Securities unless and until the same are delivered to the Trustee or its agent
for cancellation.
SECTION 2.11 Pending the preparation of definitive Securities for any
series, the Company may execute and the Trustee shall authenticate and deliver
temporary Securities for such series (printed, lithographed, typewritten or
otherwise reproduced, in each case in form satisfactory to the Trustee).
Temporary Securities of any series shall be issuable as Securities of any
authorized denomination, and substantially in the form of the definitive
Securities of such series but with such omissions, insertions and variations as
may be appropriate for temporary Securities, all as may be determined by the
Company with the concurrence of the Trustee as evidenced by the execution and
authentication thereof. Temporary Securities may contain such references to any
provisions of this Indenture as may be appropriate. Every temporary Security
shall be executed by the Company and be authenticated by the Trustee upon the
same conditions and in substantially the same manner, and with like effect, as
the definitive Securities. Without unreasonable delay the Company shall execute
and shall furnish definitive Securities of such series and thereupon temporary
Securities of such series may be surrendered in exchange therefor without charge
at each office or agent to be maintained by the Company for that purpose
pursuant to Section 5.02 and the Trustee shall authenticate and deliver in
exchange for such temporary Securities of such series an equal aggregate
principal amount of definitive Securities of the same series having authorized
denominations. Until so exchanged, the temporary Securities of any series shall
be entitled to the same benefits under this Indenture as definitive Securities
of such series, unless otherwise established pursuant to Section 2.03.
<PAGE> 26
16
ARTICLE THREE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 3.01 The provisions of this Article shall be applicable to the
Securities of any series which are redeemable before their maturity or to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 2.03 for Securities of such series.
SECTION 3.02 Notice of redemption to the Holders of Securities of any
series to be redeemed as a whole or in part at the option of the Company shall
be given by mailing notice of such redemption by first class mail, postage
prepaid, at least thirty days and not more than sixty days prior to the date
fixed for redemption to such Holders of Securities of such series at their last
addresses as they shall appear upon the Security Register. Any notice which is
mailed in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not the Holder receives the notice. Failure to give
notice by mail, or any defect in the notice, to the Holder of any Security of a
series designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security of such
series.
The notice of redemption to each such Holder shall specify the principal
amount of each Security of such series held by such Holder to be redeemed, the
date fixed for redemption, the redemption price, the place or places of payment,
that payment will be made upon presentation and surrender of such Securities,
that such redemption is pursuant to the mandatory or optional sinking fund, or
both, if such be the case, that interest accrued to the date fixed for
redemption will be paid as specified in such notice and that on and after said
date interest thereon or on the portions thereof to be redeemed will cease to
accrue. In case any Security of a series is to be redeemed in part only, the
notice of redemption shall state the portion of the principal amount thereof to
be redeemed and shall state that on and after the date fixed for redemption,
upon surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at the
option 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.
On or before the redemption date specified in the notice of redemption
given as provided in this Section, the Company will deposit with the Trustee or
with one or more paying agents (or, if the Company is acting as its own paying
agent, set aside, segregate and hold in trust as provided in Section 5.08) an
amount of money sufficient to redeem on the date fixed for redemption all the
Securities of such series so called for redemption at the appropriate redemption
price, together with accrued interest to the date fixed for redemption. If less
than all the Outstanding Securities of a series are to be redeemed at the
election of the Company, the Company will deliver to the Trustee at least sixty
days prior to the date fixed for redemption an Officers' Certificate stating the
aggregate principal amount of Securities to be redeemed. In case of a redemption
at the election of the Company prior to the expiration of any restriction on
such redemption, the Company shall deliver to the Trustee, prior to the giving
of any notice
<PAGE> 27
17
of redemption to Holders pursuant to this Section, an Officers' Certificate
stating that such restriction has been complied with.
If less than all the Securities of a series are to be redeemed, the Trustee
shall select, in such manner as it shall deem appropriate and fair, Securities
of such series to be redeemed in whole or in part. Securities may be redeemed in
part in multiples equal to the minimum authorized denomination for Securities of
such series or any multiple thereof. The Trustee shall promptly notify the
Company in writing of the Securities of such series selected for redemption and,
in the case of any Securities of such series 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 of any series shall relate, in the case of any Security redeemed
or to be redeemed only in part, to the portion of the principal amount of such
Security which has been or is to be redeemed.
SECTION 3.03 If notice of redemption has been given as above provided, the
Securities or portions of Securities specified in such notice shall become due
and payable on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for
redemption, and on and after said date (unless the Company shall default in the
payment of such Securities at the redemption price, together with interest
accrued to said date) interest on the Securities or portions of Securities so
called for redemption shall cease to accrue, and, except as provided in Section
4.03, such Securities shall cease from and after the date fixed for redemption
to be entitled to any benefit or security under this Indenture, and the Holders
thereof shall have no right in respect of such Securities except the right to
receive the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a place of
payment specified in said notice, said Securities or the specified portions
thereof shall be paid and redeemed by the Company at the applicable redemption
price, together with interest accrued thereon to the date fixed for redemption;
provided that payment of interest becoming due on or prior to the date fixed for
redemption shall be payable to the Holders of such Securities registered as such
on the relevant record date subject to the terms and provisions of Section 2.03
and 2.07 hereof.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid or duly provided for,
bear interest from the date fixed for redemption at the rate of interest
thereafter borne from time to time by such Security.
Upon presentation of any Security redeemed in part only, the Company shall
execute and the Trustee shall authenticate and deliver to or on the order of the
Holder thereof, at the expense of the Company, a new Security or Securities of
such series, of authorized denominations, in principal amount equal to the
unredeemed portion of the Security so presented.
SECTION 3.04 Securities shall be excluded from eligibility for selection
for redemption if they are identified by registration and certificate number in
an Officers' Certificate delivered to the Trustee at least forty days prior to
the last date on which
<PAGE> 28
18
notice of redemption may be given as being owned of record and beneficially by,
and not pledged or hypothecated by, either (a) the Company or (b) an entity
specifically identified in such written statement as directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company.
SECTION 3.05 The minimum amount of any sinking fund payment provided for
by the terms of the 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 the Securities of any series is herein
referred to as an "optional sinking fund payment". The date on which a sinking
fund payment is to be made is herein referred to as the "sinking fund payment
date".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Company may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Company or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Company and delivered to the Trustee for cancellation pursuant
to Section 2.10, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such series (not previously so credited) redeemed by the Company
through any optional redemption provision contained in the terms of such series
or this Indenture. Securities so delivered or credited shall be received or
credited by the Trustee at the sinking fund redemption price specified in such
Securities.
On or before the sixtieth day next preceding each sinking fund payment date
for any series, the Company will deliver to the Trustee an Officers' Certificate
(which need not contain the statements required by Section 13.06) (a) specifying
the portion of the mandatory sinking fund payment to be satisfied by payment of
cash and the portion to be satisfied by credit of Securities of such series and
the basis for such credit, (b) stating that none of the Securities of such
series has theretofore been so credited, (c) stating that no defaults in the
payment of interest or Events of Default with respect to such series have
occurred (which have not been waived or cured) and are continuing and (d)
stating whether or not the Company intends to exercise its right to make an
optional sinking fund payment with respect to such series and, if so, specifying
the amount of such optional sinking fund payment which the Company intends to
pay on or before the next succeeding sinking fund payment date. Any Securities
of such series to be credited and required to be delivered to the Trustee in
order for the Company to be entitled to credit therefor as aforesaid which have
not theretofore been delivered to the Trustee shall be delivered for
cancellation pursuant to Section 2.10 to the Trustee with such Officers'
Certificate (or reasonably promptly thereafter if acceptable to the Trustee).
Such Officers' Certificate shall be irrevocable and upon its receipt by the
Trustee the Company shall become unconditionally obligated to make all the cash
payments or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Company, on or before any
such sixtieth day, to deliver such Officers' Certificate and Securities
specified in this paragraph, if any,
<PAGE> 29
19
shall not constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Company (a) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of such
series in respect thereof and (b) that the Company will make no optional sinking
fund payment with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both) to
be made in cash on the next succeeding sinking fund payment date plus any unused
balance of any preceding sinking fund payments made in cash shall exceed $50,000
with respect to the Securities of any particular series, such cash shall be
applied on the next succeeding sinking fund payment date to the redemption of
Securities of such series at the sinking fund redemption price together with
accrued interest to the date fixed for redemption. If such amount shall be
$50,000 or less and the Company makes no such request, then it shall be carried
over until a sum in excess of $50,000 is available. The Trustee shall select, in
the manner provided in Section 3.02, for redemption on such sinking fund payment
date a sufficient principal amount of Securities of such series to absorb said
cash, as nearly as may be, and shall (if requested in writing by the Company)
inform the Company of the serial numbers of the Securities of such series (or
portions thereof) so selected.
Securities shall be excluded from eligibility for redemption under this
Section if they are identified by registration and certificate number in an
Officers' Certificate delivered to the Trustee at least sixty days prior to the
sinking fund payment date as being owned of record and beneficially by, and not
pledged or hypothecated by, either (a) the Company or (b) an entity specifically
identified in such Officers' Certificate as directly or indirectly controlling
or controlled by or under direct or indirect common control with the Company.
The Trustee, in the name and at the expense of the Company (or the Company,
if it shall so request the Trustee in writing), shall cause notice of redemption
of the Securities of such series to be given in substantially the manner
provided in Section 3.02 (and with the effect provided in Section 3.03) for the
redemption of Securities of such series in part at the option of the Company.
The amount of any sinking fund payments not so applied or allocated to the
redemption of Securities of such series shall be added to the next cash sinking
fund payment for such series and, together with such payment, shall be applied
in accordance with the provisions of this Section. Any and all sinking fund
moneys held on the stated maturity date of the Securities of any particular
series (or earlier, if such maturity is accelerated), which are not held for the
payment or redemption of particular Securities of such series shall be applied,
together with other moneys, if necessary, sufficient for the purpose, to the
payment of the principal of and interest on, the Securities of such series at
maturity.
On or before each sinking fund payment date, the Company shall pay to the
Trustee in cash or shall otherwise provide for the payment of all principal and
interest accrued to the date fixed for redemption on Securities to be redeemed
on such sinking fund payment date.
<PAGE> 30
20
The Trustee shall not redeem or cause to be redeemed any Securities of a
series with sinking fund moneys or mail any notice or redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Company a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such default or Event of Default shall
occur, and any moneys thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed to have been
collected under Article Seven and held for the payment of all such Securities.
In case such Event of Default shall have been waived as provided in Section 7.01
or 7.06 or the default cured on or before the sixtieth day preceding the sinking
fund payment date in any year, such moneys shall thereafter be applied on the
next succeeding sinking fund payment date in accordance with this Section to the
redemption of such Securities.
ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE;
DEPOSITED MONEYS AND GOVERNMENT OBLIGATIONS
SECTION 4.01. The Company shall be deemed to have paid and discharged the
entire indebtedness of and on the Securities of any series Outstanding hereunder
and the provisions of this Indenture with respect to such series (subject to
Section 4.03), if:
(a) The Company irrevocably deposits in trust with the Trustee,
pursuant to an irrevocable trust agreement in form and substance reasonably
satisfactory to the Trustee, money or direct non-callable obligations of,
or non-callable obligations guaranteed by, the United States of America for
the payment of which obligation or guarantee the full faith and credit of
the United States of America is pledged ("Government Obligations"), or a
combination of money and Government Obligations, maturing as to principal
and interest in such amounts and at such times as are sufficient, without
consideration of the reinvestment of such interest and after payment of all
Federal, state and local taxes or other charges or assessments in respect
thereof payable by the Trustee, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered in form and substance reasonably satisfactory to the
Trustee, to pay the principal of and the interest on the Outstanding
Securities of such series on the dates on which any such payments are due
and payable in accordance with the terms of this Indenture and such
Securities (or, in the event such Securities 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, to pay such principal and interest until the
date fixed for redemption, in which case the funds deposited in trust shall
also be sufficient to pay any premium due upon redemption);
(b) Such deposits shall not cause the Trustee to have a conflicting
interest as defined in and for purposes of the Trust Indenture Act of 1939;
<PAGE> 31
21
(c) No Event of Default with respect to such series shall have
occurred and be continuing on the date of such deposit or shall occur on or
before the 91st day after the date of such deposit;
(d) Such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other instrument to which
the Company is a party or by which it or its property is bound;
(e) The Company shall deliver to the Trustee an Opinion of Counsel
stating (i) 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 deposit and discharge 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 deposit and discharge had not occurred,
and (ii) that after the passage of ninety days (or such other period of
time as then required by the non-insider preference provisions of any
applicable federal bankruptcy laws) following the deposit, and provided
that neither the Trustee nor the Holders are "insiders" as defined in Title
11 of the United States Code, the trust funds will not be subject to
recovery under Section 547(b) of Title 11 of the United States Code, and
(iii) that there would not occur any violation of the Investment Company
Act of 1940, as amended, on the part of the Company or the Trustee as a
result of such deposit and the related exercise of the Company's rights
under this Section 4.01;
(f) The Holders of the Securities of such series shall have a first
priority perfected security interest under applicable state law in the
money or Government Obligations deposited pursuant to Section 4.01(a)
above; and
(g) The Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
specified herein relating to the defeasance of the Securities of such
series contemplated by this Section 4.01 (other than the priority of the
security interest referred to in Section 4.01(f) above) have been complied
with.
In the event all or any portion of the Securities of a series are to be
redeemed through such irrevocable trust, the Company must make arrangements
satisfactory to the Trustee, at the time of such deposit, for the giving of the
notice of such redemption or redemptions by the Trustee in the name and at the
expense of the Company.
SECTION 4.02. In addition to rights of the Company under Section 4.01,
this Indenture shall cease to be of further effect with respect to the
Securities of any series Outstanding hereunder (except as to any surviving
rights of registration of transfer or exchange of such Securities herein
expressly provided for), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when:
(a) all Securities of such series 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 2.09 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
<PAGE> 32
22
from such trust, as provided in Section 5.08) have been delivered to the
Trustee for cancellation;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to such series; and
(c) the Company has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that the conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture with respect to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to such series, the obligations of the Company to the Trustee under
Section 8.06 with respect to such series shall survive.
SECTION 4.03. Notwithstanding the satisfaction and discharge of this
Indenture with respect to the Securities of any series Outstanding hereunder,
the respective obligations of the Company and the Trustee under Sections 2.04,
2.05, 2.08, 2.09, 4.04, 4.05, 4.06, 5.01, 5.02, 7.01(a), 7.01(b), 7.01(d),
7.01(e) (however, as to Section 7.01(d) and 7.01(e) the provisions of such
sections shall remain in effect for a period of ninety days commencing from the
date of the satisfaction and discharge of this Indenture and the Securities),
and 8.01, 8.05, 8.06, 8.10, and 8.11 shall survive until the Securities of such
series are no longer Outstanding. Thereafter, the obligations of the Company and
the Trustee under Sections 4.04, 4.05, 4.06, 8.05, and 8.06, shall survive with
respect to such series.
SECTION 4.04. Subject to the provisions of Section 5.08, all money or
Government Obligations deposited with the Trustee pursuant to Sections 4.01 and
4.02 shall be held in trust and applied by it, in accordance with the provisions
of the Securities of the applicable series, this Indenture and, in the case of
Section 4.01, such irrevocable trust agreement, 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, premium, if any, and interest for whose payment such money has been
deposited with the Trustee. The money or Government Obligations so held in trust
under Section 4.01 shall not be part of the trust estate under this Indenture
but shall constitute a separate trust fund for the benefit of all Holders of
Securities of the particular series entitled thereto.
SECTION 4.05. Upon termination of the trust established pursuant to
Section 4.01 or 4.02, the Trustee and the paying agent shall promptly pay to the
Company upon request any excess money held by them. The Trustee and the paying
agent shall pay to the Company upon request and, if applicable, in accordance
with the irrevocable trust established pursuant to Section 4.01 any money or
Government Obligations held by them for the payment of principal of, premium, if
any, or interest on any particular series of Securities that remains unclaimed
for two years; 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 of general circulation in the Borough
of Manhattan, the City and State of New York, or mail to the Holder of any such
Security, or both, notice that such money remains unclaimed and that, after a
date specified therein, which date shall not be less than thirty days
<PAGE> 33
23
from the date of such publication or mailing, any unclaimed balance of such
money then remaining will be repaid to the Company. After payment to the
Company, Security Holders entitled to such payment of principal, premium, if
any, and interest must look to the Company for payment as general creditors
unless an applicable abandoned property law designates another person.
SECTION 4.06. If the Trustee or any paying agent is unable to apply any
money or Government Obligations in accordance with Section 4.04 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, or by reason of Government Obligations not paying principal and
interest in such amounts and at such times as are sufficient to pay the
principal of, premium, if any, and interest on the Securities of the particular
series in accordance with the terms of this Indenture, the Company's obligations
under this Indenture with respect to such series and such Securities shall be
revived and reinstated as though no deposit had occurred pursuant to Sections
4.01 and 4.02 until such time as the Trustee or any paying agent is permitted to
apply all such money or Government Obligations in accordance with Section 4.04;
provided, however, that if the Company has made any payment of interest (and
premium, if any) on, or principal of, such series of Securities because of the
reinstatement of its obligations hereunder, the Company shall be subrogated to
the rights of the Holders of such series of Securities to receive such payment
from the money or Government Obligations held by the Trustee or such paying
agent for such purpose.
ARTICLE FIVE
PARTICULAR COVENANTS OF THE COMPANY
The Company covenants and agrees as follows:
SECTION 5.01. For the benefit of each series of Securities, the Company
will duly and punctually pay, or cause to be paid, the principal of, premium, if
any, and interest on each and every Security of such series (together with any
additional amounts payable pursuant to the terms of such Securities) at the
respective times and places and in the manner mentioned in such Securities and
in this Indenture. The interest upon Global Securities shall be paid by wire
transfer of immediately available funds to the Depositary for such Global
Securities. The interest on Securities in definitive registered form, other than
interest payable at maturity (or on the date of redemption if the Security is
redeemed by the Company prior to maturity), will be paid by check mailed to the
address of the person entitled thereto as shown on the Security Register.
Payments of principal and interest at maturity or upon redemption will be made
in immediately available funds against presentation and surrender of the
Security. Notwithstanding the foregoing, a Holder of $10,000,000 or more in
aggregate principal amount of Securities in definitive registered form having
the same interest payment dates shall be entitled to receive payments of
interest by wire transfer of immediately available funds upon written request to
the Trustee or the paying agent as
<PAGE> 34
24
provided in the form of Security. When and as paid, all Securities shall be
cancelled by the Trustee in the manner provided in Section 2.10.
SECTION 5.02. In the event Securities are issued in definitive registered
form, at all times until the payment of the principal of such Securities, the
Company will maintain an office or agency in the Borough of Manhattan, the City
and State of New York, where such Securities may be presented for transfer and
exchange as in this Indenture provided, and where such Securities may be
presented for payment, and where notices or demands in respect of such
Securities or of this Indenture may be served. In case the Company shall at any
time not maintain such office or agency, or shall fail to give notice to the
Trustee of any change in the location thereof, presentation and demand may be
made and notice may be served, in respect of the Securities or of this
Indenture, at the Corporate Trust Office of the Trustee.
In addition to such office or agency, the Company may from time to time
designate one or more other offices or agencies where the Securities may be
presented for any or all of the purposes specified above in this Section and may
constitute and appoint one or more paying agents for the payment of such
Securities in one or more other cities, and may from time to time rescind such
designations and appointments, as the Company may deem desirable or expedient;
provided, however, that no such designation, appointment or rescission shall in
any manner relieve the Company of its obligation to maintain such office and
agency in the said Borough of Manhattan, when and for the purposes above
mentioned.
Subject to the provisions of Section 8.01, the Trustee shall not be liable
or responsible for the application of any funds transmitted to or held by any
paying agent (other than itself) for the purpose of paying Securities; and in
the event that funds so transmitted to or held by any such paying agent for such
purpose shall not be applied to such purpose, the Company covenants and agrees
to furnish the Trustee or a paying agent with funds to be applied to the payment
of Securities equal to such funds not so applied by such other paying agent.
SECTION 5.03. The Company will not, directly or indirectly, extend or
assent to the extension of the time for the payment of any claim for interest on
any of the Securities, and will not, directly or indirectly, be a party to or
approve of any such arrangement in any manner; provided, however, that this
Section 5.03 shall not apply in any case where an extension shall be pursuant to
a plan proposed by the Company to the Holders of all the Securities of a series
then Outstanding.
SECTION 5.04. The Company covenants and warrants that it is duly
authorized under the laws of the State of Delaware, and under all other
applicable provisions of law, to create and issue the Securities evidencing its
indebtedness and to execute this Indenture, that all corporate action on its
part for the creation and issue of the Securities and the execution of this
Indenture has been duly and effectively taken, and that the Securities, when
issued, will be valid and binding obligations of the Company and entitled to the
benefits of this Indenture.
SECTION 5.05. So long as any of the Securities shall be outstanding, the
Company will insure and keep insured, and will cause each Restricted Subsidiary
to
<PAGE> 35
25
insure and keep insured, with reputable insurance companies, so much of their
respective properties, to such an extent and against such risks (including
fire), as companies engaged in similar businesses customarily insure properties
of a similar character; or, in lieu thereof, in the case of itself or of any one
or more of its Restricted Subsidiaries, the Company will maintain or cause to be
maintained a system or systems of self-insurance which will accord with the
approved practices of companies owning or operating properties of a similar
character and maintaining such systems, and, in such cases of self-insurance,
will cause to be maintained an insurance reserve or reserves in adequate
amounts.
SECTION 5.06. So long as any of the Securities shall be outstanding, the
Company will, and will cause each Restricted Subsidiary to,
(a) promptly pay and discharge or cause to be paid and discharged all
taxes, assessments and governmental charges or levies lawfully imposed upon
it or upon its income or profits or upon any of its property, real or
personal, or upon any part thereof, as well as all claims for labor,
materials and supplies which, if unpaid, might by law become a lien or
charge upon its property; provided, however, that neither the Company nor
any Restricted Subsidiary shall be required to pay any such tax,
assessment, charge, levy or claim if the validity thereof shall currently
be contested in good faith by appropriate proceedings and if the Company or
such Restricted Subsidiary, as the case may be, shall have set aside on its
books reserves deemed by it adequate with respect thereto; and provided
further that the Company shall not be obligated hereunder to pay or cause
to be paid any such taxes, assessments or charges, if, in the opinion of
the Board of Directors, payment of the same shall be no longer advantageous
to the Company or such Restricted Subsidiary in the conduct of its
business; and
(b) maintain and keep its properties and every part thereof in good
repair, working order and condition, and make or cause to be made all such
needful and proper repairs, renewals and replacements thereto, as in the
judgment of the Company are necessary in the interests of the Company;
provided, however, that nothing in this subdivision (b) shall prevent the
Company or any Restricted Subsidiary, from time to time, from selling,
abandoning or otherwise disposing of any of their respective properties or
discontinuing a part of their respective business if such sale,
abandonment, disposition or discontinuance is, in the judgment of the
Company, advisable.
SECTION 5.07. The Company, whenever necessary to avoid or fill a vacancy
in the office of Trustee, will appoint, in the manner provided in Section 8.10,
a Trustee, so that there shall at all times be a Trustee with respect to each
series of Securities hereunder and, whenever necessary to avoid or fill a
vacancy in the position of any paying, calculation, transfer or other agent with
respect to any series of Securities, will appoint a successor agent.
SECTION 5.08. (a) If the Company shall appoint a paying agent other than
the Trustee with respect to any series of Securities, it will cause such paying
agent to
<PAGE> 36
26
execute and deliver to the Trustee an instrument in which such agent shall agree
with the Trustee, subject to the provisions of this Section 5.08,
(i) that it will hold all sums held by it as such agent for the
payment of the principal of, premium, if any, or interest on such
Securities (whether such sums have been paid to it by the Company or by any
other obligor on such Securities) in trust for the benefit of the Holders
of such Securities or of the Trustee, as the case may be,
(ii) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on such Securities) to make any payment of
the principal of, premium, if any, or interest on such Securities when the
same shall be due and payable; and
(iii) that at any time during the continuance of such failure, upon
the written request of the Trustee, it will forthwith pay to the Trustee
all sums so held in trust by such paying agent.
(b) If the Company shall act as its own paying agent, it will, on or before
each due date of the principal of, premium, if any, or interest on the
Securities of any series, set aside, segregate and hold in trust for the benefit
of the Holders entitled thereto, a sum sufficient to pay such principal,
premium, if any, or interest so becoming due until such sums shall be paid to
such Holders or otherwise disposed of as herein provided and will promptly
notify the Trustee of any failure (by it or any other obligor on such
Securities) to take such action.
(c) Whenever the Company shall have one or more paying agents, it will,
prior to each due date of the principal of, premium, if any, or interest on any
series of Securities, deposit with a paying agent a sum sufficient to pay the
principal, premium, if any, or interest so becoming due, such sum to be held in
trust for the benefit of the persons entitled to such principal, premium or
interest, and (unless such paying agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
(d) Anything in this Section 5.08 to the contrary notwithstanding, 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 cause to be paid
to the Trustee all sums held in trust by it or any paying agent as required by
this Section 5.08, such sums to be held by the Trustee upon the trusts herein
contained, 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 sums.
(e) 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, premium, if any,
or interest on any Security and remaining unclaimed for two years after such
principal, premium, if any, or interest has become due and payable shall be paid
to the Company upon its written request, or if then held by the Company, shall
be discharged from such trust; 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
<PAGE> 37
27
once, in a newspaper of general circulation in the Borough of Manhattan, the
City and State of New York, or mail to the registered Holder of any such
Security, or both, notice that such money remains unclaimed and that, after a
date specified therein, which date shall not be less than 30 days from the date
of such publication or mailing, any unclaimed balance of such money then
remaining will be repaid to the Company. After payment to the Company, Security
Holders entitled to such payment must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another person,
and thereupon 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
cease.
(f) Anything in this Section 5.08 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 5.08 is subject to
the provisions of Article Four.
SECTION 5.09. So long as any of the Securities shall be outstanding, the
Company will do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence, rights and franchises; provided
that nothing in this Section 5.09 shall prevent (a) any consolidation or merger
of the Company, or any sale or transfer of all or substantially all of its
property and assets, permitted by Article Twelve, or (b) the liquidation or
dissolution of the Company after a sale or transfer of all or substantially all
of its property and assets permitted by Article Twelve hereof; and provided
further that the Company shall not be required to preserve any right or
franchise if the Board of Directors of the Company shall determine that the
preservation thereof is no longer desirable in the conduct of business of the
Company and that the loss thereof is not disadvantageous to the Security Holders
in any material respect.
SECTION 5.10. So long as any of the Securities shall be outstanding, the
Company will not, and will not permit any Restricted Subsidiary to, sell or
transfer (other than to the Company or a Wholly-owned Restricted Subsidiary) any
Principal Property, whether owned at the date of this Indenture or hereafter
acquired, which has been in full operation for more than 120 days prior to such
sale or transfer, with the intention of entering into a lease of such Principal
Property (except for a lease for a term, including any renewal thereof, of not
more than three years), if after giving effect thereto the Attributable Debt in
respect of all such sale and leaseback transactions involving Principal
Properties shall be in excess of five percent (5%) of Consolidated Net Worth.
Notwithstanding the foregoing, the Company or any Restricted Subsidiary may
sell any Principal Property and lease it back if the net proceeds of such sale
are at least equal to the fair value of such property as determined by the Board
of Directors of the Company and within 120 days of such sale (a) the Company
redeems (if permitted by the terms of outstanding Securities), at the principal
amount thereof (or, in the case of an Original Issue Discount Security, such
portion of the principal as may be specified in the terms thereof) together with
accrued interest to the date fixed for redemption, such outstanding Securities
in an aggregate principal amount equal to such net proceeds, or (b) the Company
or a Restricted Subsidiary repays other Funded Debt in an aggregate principal
amount equal to such net proceeds, or (c) the Company delivers
<PAGE> 38
28
to the Trustee, for cancellation, outstanding Securities uncancelled and in
transferable form, in an aggregate principal amount equal to such net proceeds,
or (d) the Company applies such net proceeds to the purchase of properties,
facilities or equipment to be used for general operating purposes.
SECTION 5.11. Except as in this Section 5.11 expressly permitted, so long
as any of the Securities shall be outstanding, the Company will not at any time
directly or indirectly create, incur, assume or suffer to exist, and will not
suffer or permit any Restricted Subsidiary to create, incur, assume or suffer to
exist, except in favor of the Company or another Restricted Subsidiary, any
mortgage, pledge or other lien or encumbrance of or upon any Principal Property
or any shares of capital stock or indebtedness of any Restricted Subsidiary,
whether owned at the date of this Indenture or hereafter acquired, or of or upon
any income or profits therefrom, if after giving effect thereto (but not to any
mortgages, pledges, liens or encumbrances described in clauses (a) through (j)
below) the aggregate principal amount of indebtedness secured by mortgages,
pledges, liens or other encumbrances upon the property of the Company and its
Restricted Subsidiaries shall be in excess of five percent (5%) of Consolidated
Net Worth, without making effective provision (and the Company covenants that in
any such case it will make or cause to be made effective provision) whereby all
Securities then outstanding will be secured by such mortgage, pledge, lien or
encumbrance equally and ratably with (or prior to) any and all obligations,
indebtedness or claims secured by such mortgage, pledge, lien or encumbrance, so
long as any such other obligations, indebtedness or claims shall be so secured.
Nothing in this Section 5.11 shall be construed to prevent the Company or
any Restricted Subsidiary, without so securing the Securities, from creating,
assuming or suffering to exist the following mortgages, pledges, liens or
encumbrances:
(a) The following mortgages and liens in connection with the
acquisition of property hereafter acquired:
(i) (A) any purchase money mortgage or other purchase money lien on
any Principal Property hereafter acquired, including conditional sales
and other title retention agreements; or (B) any mortgage or other lien
on property hereafter acquired, constructed or improved created as
security for moneys borrowed (at the time of or within 120 days after
the purchase, construction or improvement of such property) to provide
funds for the purchase, construction or improvement of such property, or
(C) any mortgage or other lien on any property hereafter acquired which
exists at the time of the acquisition thereof and which was not created
in connection with or in contemplation of such acquisition; provided in
each case that (x) such mortgage or other lien is limited to such
acquired property (and accretions thereto) or, in the case of
construction or improvements, any theretofore unimproved real property,
and (y) the aggregate amount of the obligations, indebtedness or claims
secured by such mortgage or other lien does not exceed the cost to the
Company or such Restricted Subsidiary of such acquired property or the
value thereof at the time of acquisition, as determined by the Board of
Directors, whichever be the lower;
<PAGE> 39
29
(ii) any mortgage or other lien created in connection with the
refunding, renewal or extension of any obligations, indebtedness or
claims secured by a mortgage or lien mentioned in the foregoing clause
(i) which is limited to the same property; provided that the aggregate
amount of the obligations, indebtedness or claims secured by such
refunding, renewal or extended mortgage or other lien does not exceed
the aggregate amount thereof secured by the mortgage or other lien so
refunded, renewed or extended and outstanding at the time of such
refunding, renewal or extension; or
(iii) any mortgage or other lien to which property hereafter
acquired shall be subject at the time of acquisition, if the payment of
the indebtedness secured thereby or interest thereon will not become, by
assumption or otherwise, a personal obligation of the Company or a
Restricted Subsidiary;
(b) mechanics', materialmen's, carriers' or other like liens, and
pledges or deposits made in the ordinary course of business to obtain the
release of any such liens or the release of property in the possession of a
common carrier; good faith deposits in connection with tenders, leases of
real estate or bids or contracts (other than contracts for the borrowing of
money); pledges or deposits to secure public or statutory obligations;
deposits to secure (or in lieu of) surety, stay, appeal or customs bonds;
and deposits to secure the payment of taxes, assessments, customs duties or
other similar charges;
(c) any lien arising by reason of deposits with, or the giving of any
form of security to, any governmental agency or any body created or
approved by law or governmental regulation, which is required by law or
governmental regulation as a condition to the transaction of any business,
or the exercise of any privilege or license, or to enable the Company or a
Restricted Subsidiary to maintain self-insurance or to participate in any
arrangements established by law to cover any insurance risks or in
connection with workers' compensation, unemployment insurance, old age
pensions, social security or similar matters;
(d) the liens of taxes or assessments not at the time due, or the
liens of taxes or assessments already due but the validity of which is
being contested in good faith and against which adequate reserves have been
established;
(e) judgment liens, so long as the finality of such judgment is being
contested in good faith and execution thereon is stayed;
(f) easements or similar encumbrances, the existence of which does not
impair the use of the property subject thereto for the purposes for which
it is held or was acquired;
(g) leases and landlords' liens on fixtures and movable property
located on premises leased in the ordinary course of business, so long as
the rent secured thereby is not in default;
(h) liens, pledges or deposits made in connection with contracts with
or made at the request of any government or any department or agency
thereof or
<PAGE> 40
30
made with any prime contractor or subcontractor of any tier in connection with
the furnishing of services or property to any government or any department or
agency thereof (hereinafter referred to as "Government Contracts") insofar as
such liens, pledges or deposits relate to property manufactured, installed,
constructed, acquired or to be supplied by, or property furnished to, the
Company or a Restricted Subsidiary pursuant to, or to enable the performance of,
such Government Contracts, or property the manufacture, installation,
construction or acquisition of which any government or any department or agency
thereof finances or guarantees the financing of, pursuant to, or to enable the
performance of, such Government Contracts; or deposits or liens, made pursuant
to such Government Contracts, of or upon moneys advanced or paid pursuant to, or
in accordance with the provisions of, such Government Contracts, or of or upon
any materials or supplies acquired for the purpose of the performance of such
Government Contracts; or the assignment or pledge to any person, firm or
corporation, to the extent permitted by law, of the right, title and interest of
the Company or a Restricted Subsidiary in and to any Government Contract, or in
and to any payments due or to become due thereunder, to secure indebtedness
incurred and owing to such person, firm or corporation for funds or other
property supplied, constructed or installed for or in connection with the
performance by the Company or such Restricted Subsidiary of its obligations
under such Government Contract;
(i) any mortgage or other lien securing indebtedness of a corporation
which is a successor to the Company to the extent permitted by Article Twelve
hereof, or securing indebtedness of a Restricted Subsidiary outstanding at the
time it became a Subsidiary (provided that such mortgage or other lien was not
created in connection with or in contemplation of the acquisition of such
Restricted Subsidiary), and any mortgage or other lien created in connection
with the refunding, renewal or extension of such indebtedness which is limited
to the same property, provided that the amount of the indebtedness secured by
such refunding, renewal or extended mortgage or other lien does not exceed the
amount of indebtedness secured by the mortgage or other lien to be refunded,
renewed or extended and outstanding at the time of such refunding, renewal or
extension; and
(j) any mortgage or other lien in favor of the United States of
America or any State thereof, or political subdivision of the United States of
America or any State thereof, or any department, agency or instrumentality of
the United States of America or any State thereof or any such political
subdivision, to secure indebtedness incurred for the purpose of financing the
acquisition, construction or improvement of all or any part of the property
subject to such mortgage or other lien, and any mortgage or other lien created
in connection with the refunding, renewal or extension of such indebtedness
which is limited to the same property, provided that the amount of the
indebtedness secured by such refunding, renewal or extended mortgage or other
lien does not exceed the amount of indebtedness secured by the mortgage or
other lien to be refunded, renewed or extended and outstanding at the time of
such refunding, renewal or extension.
<PAGE> 41
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SECTION 5.12. The Company covenants and agrees that it will hereafter,
from time to time, whenever reasonably requested by the Trustee, make, do,
execute, acknowledge and deliver, or cause to be made, done, executed,
acknowledged and delivered, any and all such further acts and other instruments
as may be reasonably necessary or proper for the purpose of facilitating the
execution of this trust or to secure the rights and remedies conferred upon the
Trustee and the Holders of the Securities by this Indenture or by any indenture
supplemental hereto. The Company further covenants and agrees that it will duly
and punctually keep, observe, perform and fulfill each and every term, covenant
and condition on its part to be kept, observed, performed and fulfilled,
contained in this Indenture and in any and every indenture supplemental hereto
which may be executed and delivered by the Company to the Trustee as provided or
permitted by this Indenture.
SECTION 5.13. The Company will, on or before the first day of October in
each year commencing with the year 1997, file with the Trustee an Officers'
Certificate stating that a review of the activities of the Company and its
Subsidiaries during the preceding fiscal year has been made under the
supervision of the officers signing such certificate with a view to determining
whether the Company has kept, observed, performed and fulfilled all the
covenants, agreements and obligations on its part contained in this Indenture
and that to the best of the knowledge of such officers the Company is not in
default in the performance, observance or fulfillment of any of the terms,
provisions and conditions hereof, and that no default exists or, if the Company
shall be so in default or if any default exists, specifying all such defaults,
and the nature thereof, of which such officers may have knowledge. The Company
will deliver to the Trustee within five days after the occurrence thereof
written notice of any event that, with the giving of notice and the lapse of
time, would become an Event of Default under subsection (f) of Section 7.01.
ARTICLE SIX
SECURITY HOLDERS' LIST AND REPORTS BY THE COMPANY
AND THE TRUSTEE
SECTION 6.01. The Company covenants and agrees that it will furnish or
cause to be furnished to the Trustee semiannually and not more than ten days
after each record date (as defined pursuant to Section 2.03) for the payment of
interest on each series of Securities, and at such other times as the Trustee
may request in writing, within thirty days after receipt by the Company of any
such request, a list in such form as the Trustee may reasonably require
containing all information in the possession or control of the Company, or any
of its paying agents other than the Trustee, as to the names and addresses of
the Holders of each series of the Securities obtained since the date as of which
the next previous list, if any, was furnished; provided, however, that no such
list need be furnished if the Trustee shall be the Security Registrar. Any such
list may be dated as of a date not more than ten days prior to the time such
information is furnished or caused to be furnished, and need not include
information received after such date.
<PAGE> 42
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SECTION 6.02. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of the
Holders of each series of Securities (i) contained in the most recent list
furnished to it as provided in Section 6.01, and (ii) received by it in the
capacity of paying agent for such series (if so acting) hereunder.
The Trustee may (i) destroy any list furnished to it as provided in Section
6.01 upon receipt of a new list so furnished, and (ii) destroy any information
received by it as paying agent (if so acting) hereunder upon delivering to
itself as Trustee, not earlier than forty-five days after an interest payment
date of the Securities, a list containing the names and addresses of the Holders
of Securities obtained from such information since the delivery of the next
previous list, if any.
(b) In case three or more Holders of Securities (hereinafter referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each applicant has owned a Security for a period of at
least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders of
Securities of a particular series (in which case the applicants must all hold
Securities of such series) or with Holders of all Securities with respect to
their rights under this Indenture or under such Securities, and is accompanied
by a copy of the form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall within five Business Days after the
receipt of such application, at its election, either
(i) afford to such applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a)
of this Section 6.02, or
(ii) inform such applicants as to the approximate number of Holders of
Securities of such series or of all Securities, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee, in accordance with the provisions of subsection (a) of this
Section 6.02, and as to the approximate cost of mailing to such Security
Holders the form of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Security Holder of such series or all Holders of Securities, as the
case may be, whose name and address appears in the information preserved at the
time by the Trustee in accordance with the provisions of subsection (a) of this
Section 6.02, a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants, and file with the
Securities and Exchange Commission, together with a copy of the material to be
mailed, a written statement to the effect that, in the opinion of the Trustee,
such mailing would be contrary to the best interest of the Holders of Securities
of such series or of all Securities, as the case may be, or would be in
violation of applicable law. Such written
<PAGE> 43
33
statement shall specify the basis of such opinion. If said Commission, after
opportunity for a hearing upon the objections specified in the written statement
so filed, shall enter an order refusing to sustain any of such objections, or
if, after the entry of an order sustaining one or more of such objections, said
Commission shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so declaring, the
Trustee shall mail copies of such material to all such Security Holders with
reasonable promptness after the entry of such order and the renewal of such
tender; otherwise the Trustee shall be relieved of any obligation or duty to
such applicants respecting their application.
(c) Each and every Holder of the Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any paying agent shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
of Securities in accordance with the provisions of subsection (b) of this
Section 6.02, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under said subsection (b).
SECTION 6.03. (a) The Company covenants and agrees to file with the Trustee
within fifteen days after the Company is required to file the same with the
Securities and Exchange Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as said Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with said Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; 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 said Commission, in accordance
with rules and regulations prescribed from time to time by said Commission, such
of the supplementary and periodic information, documents and reports which may
be required pursuant to Section 13 of the Exchange Act in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and the
Securities and Exchange Commission, in accordance with the rules and regulations
prescribed from time to time by said Commission, such additional information,
documents and reports with respect to compliance by the 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 to the Holders of
Securities within thirty days after the filing thereof with the Trustee, in the
manner and to the extent provided in subsection (c) of Section 6.04 with respect
to reports pursuant to subsection (a) of said Section 6.04, such summaries of
any information, documents and reports required to be filed by the Company
pursuant to subsections (a) and (b) of this Section 6.03 as may be required by
rules and regulations prescribed from time to time by the Securities and
Exchange Commission.
<PAGE> 44
34
SECTION 6.04. (a) On or before July 15, 1997, and on or before July 15 in
every year thereafter, so long as any Securities are outstanding hereunder, the
Trustee shall transmit to the Security Holders a brief report, dated as of the
preceding May 15, if and to the extent required under Section 313(a) of the
Trust Indenture Act of 1939.
(b) The Trustee shall comply with Section 313(b) and Section 313(c) of the
Trust Indenture Act of 1939.
(c) A copy of each such report shall, at the time of such transmission to
Security Holders, be filed by the Trustee with each stock exchange upon which
the Securities of any applicable series are listed and also with the Securities
and Exchange Commission. The Company agrees to notify the Trustee when and as
the Securities of any series become listed on any stock exchange.
ARTICLE SEVEN
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS
UPON EVENT OF DEFAULT
SECTION 7.01. "Event of Default" with respect to Securities of any series,
wherever used herein, means each one of the following events which shall have
occurred and be continuing (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):
(a) default in the due and punctual payment of any installment of
interest upon any of the Securities of such series as and when the same
shall become due and payable, and continuance of such default for a period
of thirty days; or
(b) default in the due and punctual payment of the principal of and
premium, if any, on any of the Securities of such series as and when the
same shall become due and payable either at maturity, upon redemption, by
declaration as authorized by this Indenture, or otherwise; or
(c) failure on the part of the Company to duly observe or perform any
other of the covenants or agreements on the part of the Company contained
in the Securities of such series or in this Indenture for a period of
ninety days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Company by
the Trustee, or to the Company and the Trustee by the Holders of at least
twenty-five percent (25%) in principal amount of the Outstanding Securities
of all series affected thereby; or
(d) a decree or order by a court having jurisdiction in the premises
shall have been entered adjudging the Company a bankrupt or insolvent, or
approving a petition seeking reorganization of the Company under Federal
bankruptcy law or any other applicable Federal or State law, and such
decree or order shall have continued undischarged or unstayed for a period
of ninety days; or a decree or order of a court having jurisdiction in the
premises for the appointment of a
<PAGE> 45
35
receiver or liquidator or trustee or assignee in bankruptcy or insolvency
of the Company or of all or substantially all of its property, or for the
winding up or liquidation of its affairs, shall have been entered, and
such decree or order shall have remained in force undischarged or unstayed
for a period of ninety days; or
(e) the Company shall institute proceedings to be adjudicated a
voluntary bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent
seeking reorganization under Federal bankruptcy law or any other applicable
Federal or State law, or shall consent to the filing of any such petition,
or shall consent to the appointment of a receiver or liquidator or trustee
or assignee in bankruptcy or insolvency of it or of all or substantially
all of its property, or shall make an assignment for the benefit of
creditors, or shall admit in writing its inability to pay its debts
generally as they become due; or
(f) if an event of default as defined in any mortgage, indenture or
instrument, under which there may be issued, or by which there may be
secured or evidenced, any indebtedness of the Company (other than the
Securities of such series), whether such indebtedness now exists or shall
hereafter be created, shall happen and shall result in such indebtedness
becoming or being declared due and payable prior to the date on which it
would otherwise become due and payable, and such acceleration shall not be
rescinded or annulled within ten days after written notice to the Company
from the Trustee or to the Company and to the Trustee from the Holders of
not less than twenty-five percent (25%) of the then Outstanding Securities
of all series (treated as one class); or
(g) any other Event of Default provided in the supplemental indenture
under which such series of Securities is issued or in the form of Security
for such series.
If an Event of Default described in clauses (a), (b), (c) or (g) (if the
Event of Default under clause (c) or (g), as the case may be, is with respect to
less than all series of Securities then Outstanding) occurs and is continuing,
then, and in each and every such case, unless the principal of all of the
Securities of such series shall have already become due and payable, either the
Trustee or the Holders of not less than twenty-five percent (25%) in aggregate
principal amount of the Securities of such affected series then Outstanding
hereunder (voting as a single class) by notice in writing to the Company (and to
the Trustee if given by Security Holders), may declare the entire principal (or,
if any Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof) of all Securities of all
such affected series and the interest accrued thereon, if any, to be due and
payable immediately, and upon any such declaration the same shall become
immediately due and payable. If an Event of Default described in clause (c) or
(g) (if the Event of Default under clause (c) or (g), as the case may be, is
with respect to all series of Securities then Outstanding), (d), (e) or (f)
occurs and is continuing, then and in each and every such case, unless the
principal of all the Securities shall have already become due and payable,
either the Trustee or the Holders of not less than twenty-five percent (25%) in
aggregate principal amount of all the Securities then Outstanding
<PAGE> 46
36
hereunder (treated as one class), by notice in writing to the Company (and to
the Trustee if given by Security Holders), may declare the entire principal (or,
if any Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof) of all the Securities then
Outstanding and interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately due
and payable.
The foregoing provisions, however, are subject to the condition that if, at
any time after the principal of (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof) and accrued interest, if any, on the Securities of any series (or
all of the Securities, as the case may be) shall have been so declared due and
payable, but before such Securities shall have become due by their terms and
before any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Securities of such series (or of all of the Securities, as
the case may be) then Outstanding and the principal of any and all Securities of
such series (or of all of the Securities, as the case may be) then Outstanding
which shall have become due otherwise than by acceleration with interest upon
such principal and, to the extent that payment of such interest is enforceable
under applicable law, upon overdue installments of interest, at the rate per
annum or Yield to Maturity (in the case of Original Issue Discount Securities)
expressed in the Securities of each such series (or at the respective rates of
interest or Yields to Maturity of all the Securities, as the case may be) to the
date of such payment or deposit) and all amounts payable to the Trustee under
Section 8.06, and any and all defaults under the Indenture, other than the
nonpayment of principal on the Securities of such series (or of all of the
Securities, as the case may be) then Outstanding which shall not have become due
by their terms, shall have been remedied or provision shall have been made
therefor to the satisfaction of the Trustee, then and in every such case the
Holders of a majority in aggregate principal amount of the Securities of such
series, each series voting as a separate class (or of all the Securities, as the
case may be, voting as a single class), then Outstanding, by written notice to
the Company and to the Trustee, may waive all defaults and rescind and annul
such declaration and its consequences; but no such waiver or rescission and
annulment shall extend to or shall affect any subsequent default, or shall
impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Company and
the Trustee shall be restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the Company and the Trustee
shall continue as though no such proceedings had been taken.
For all purposes under this Indenture, if a portion of the principal of any
Original Issue Discount Securities shall have been accelerated and declared due
and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such
<PAGE> 47
37
declaration has been rescinded and annulled, the principal amount of such
Original Issue Discount Securities shall be deemed, for all purposes hereunder,
to be such portion of the principal thereof as shall be due and payable as a
result of such acceleration, and payment of such portion of the principal
thereof as shall be due and payable as a result of such acceleration, together
with interest, if any, thereon and all other amounts owing thereunder, shall
constitute payment in full of such Original Issue Discount Securities.
SECTION 7.02. The Company covenants that (1) in case default shall be made
in the payment of any installment of interest on any of the Securities of any
series, as and when the same shall become due and payable, and such default
shall have continued for a period of thirty days, or (2) in case default shall
be made in the payment of all or any part of the principal of and premium, if
any, on any of the Securities of any series when the same shall have become due
and payable, whether upon maturity of the Securities of such series or upon
redemption or upon declaration as authorized by this Indenture or otherwise,
then, upon demand of the Trustee, the Company will pay to the Trustee, for the
benefit of the Holders of the Securities of such series then Outstanding, the
whole amount that then shall have become due and payable on all such Securities
of such series for principal, premium, if any, or interest as the case may be,
with interest upon the overdue principal and premium, if any, and (to the extent
that payment of such interest is enforceable under applicable law) upon overdue
installments of interest at the rate per annum or Yield to Maturity (in the case
of Original Issue Discount Securities) expressed in the Securities of such
series; and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, and all amounts payable to the
Trustee under Section 8.06. Until such demand is made by the Trustee, the
Company may pay the principal and premium, if any, of and interest on the
Securities of such series to the Holders of the Securities of such series
whether or not the Securities of such series be overdue.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or other obligor upon such
Securities and collect in the manner provided and to the extent permitted by law
out of the property of the Company or other obligor upon such Securities
wherever situated the moneys adjudged or decreed to be payable.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Security Holders of any 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.
The Trustee shall be entitled and empowered, either in its own name or as
trustee of an express trust, or as attorney-in-fact for the Holders of the
Securities of any series, or in any one or more of such capacities, to file such
proof of debt, amendment of proof
<PAGE> 48
38
of debt, claim, petition or other document as may be necessary or advisable in
order to have the claims of the Trustee and of the Holders of the Securities of
any series allowed in any receivership, insolvency, bankruptcy, liquidation,
readjustment, reorganization or other judicial proceedings relative to the
Company or any other obligor on the Securities of any series or their creditors,
or affecting their property. The Trustee is hereby irrevocably appointed (and
the successive respective Holders of the Securities of any series by taking and
holding the same shall be conclusively deemed to have so appointed the Trustee)
the true and lawful attorney-in-fact of the respective Holders of the Securities
of any series, with authority to make and file in the respective names of the
Holders of the Securities of any series or on behalf of the Holders of the
Securities of any series as a class, subject to deduction from any such claims
of the amounts of any claims filed by any of the Holders of the Securities of
any series themselves, any proof of debt, amendment of proof of debt, claim,
petition or other document in any such proceedings and to receive payment of any
sums becoming distributable on account thereof, and to execute any such other
papers and documents and to do and perform any and all such acts and things for
and on behalf of such Holders of the Securities of any series, as may be
necessary or advisable in the opinion of the Trustee in order to have the
respective claims of the Trustee and of the Holders of the Securities of any
series against the Company or its property allowed in any such proceeding, and
to receive payment of or on account of such claims; provided, however, that
nothing contained in this Indenture shall be deemed to authorize the Trustee to
authorize or consent to, or accept or adopt on behalf of any Security Holder,
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities of any series or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Security Holder of any series
in any such proceeding. Any receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such proceeding is hereby
authorized by each Security 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 Security Holders of any series, to pay to the Trustee any amount due to
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 8.06.
All rights of action and of asserting claims under this Indenture, or under
any of the Securities of any series, may be enforced by the Trustee without the
possession of any of the Securities of such series or the production thereof at
any trial or other proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall be for the ratable benefit of
the Holders of the Securities in respect of which such action was taken, subject
to the provisions of this Indenture. In any proceedings brought by the Trustee
(and also any proceedings in which a declaratory judgment of a court may be
sought as to the interpretation or construction of any provision of this
Indenture, to which the Trustee shall be a party) the Trustee shall be held to
represent all the Holders of the Securities of any series affected thereby, and
it shall not be necessary to make any Holders of such Securities parties to any
such proceedings.
<PAGE> 49
39
SECTION 7.03. Any moneys collected by the Trustee pursuant to Section 7.02
in respect of any series shall be applied in the order following, at the date or
dates fixed by the Trustee, upon presentation of the several Securities, and
stamping (or otherwise noting) thereon the payment, if any, partially paid, and
upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection applicable
to such series, and of all amounts payable to the Trustee under Section
8.06;
SECOND: In case the principal of the Outstanding Securities of such
series shall not have become due and be unpaid, to the payment of defaulted
interest on the Securities of such series, in the order of the maturity of
the installments of such interest, with interest (so far as may be lawful
and if such interest has been collected by the Trustee) upon the overdue
installments of interest at the rate per annum or Yield to Maturity (in the
case of Original Issue Discount Securities) expressed in such Securities,
such payments to be made ratably to the persons entitled thereto, without
discrimination or preference;
THIRD: In case the principal of the Outstanding Securities of such
series shall have become due, by declaration as authorized by this
Indenture or otherwise, to the payment of the whole amount then owing and
unpaid upon the Securities of such series for principal and interest, with
interest on the overdue principal, and (so far as may be lawful and if such
interest has been collected by the Trustee) upon overdue installments of
interest at the rate per annum or Yield to Maturity (in the case of
Original Issue Discount Securities) expressed in the Securities of such
series; and in case such moneys shall be insufficient to pay in full the
whole amount so due and unpaid upon the Securities of such series; then to
the payment of such principal and interest, without preference or priority
of principal over interest or of interest over principal, or of any
installment of interest over any other installment of interest, or of any
Security of such series over any other Security of such series, ratably to
the aggregate of such principal and accrued and unpaid interest;
FOURTH: To the payment of the remainder, if any, to the Company, its
successors or assigns.
SECTION 7.04. Except as otherwise expressly provided in this Section 7.04,
no Holder of any Security of any series shall have any right by virtue or by
availing of any provision of this Indenture or otherwise to institute any suit,
action or proceeding in equity or at law upon or under or with respect to this
Indenture, for the appointment of a receiver or trustee, for the execution of
any trust or power hereof, or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of default and of the
continuance thereof, as hereinbefore provided, and unless also the Holders of
not less than twenty-five percent (25%) in aggregate principal amount of the
Securities of each affected series then Outstanding (treated as a single class)
shall have made written request upon the Trustee either to proceed to exercise
the power hereinbefore granted or to institute such action, suit or proceeding
in its own name as Trustee hereunder and shall have offered to the Trustee such
<PAGE> 50
40
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee within a
reasonable time (which in no event shall be less than sixty days) after its
receipt of such notice, request and offer of indemnity, shall have failed to
proceed to exercise such powers or to institute any such action, suit or
proceeding, and no direction inconsistent with such written request shall have
been given to the Trustee during such reasonable time by the Holders of a
majority in principal amount of such Outstanding Securities; it being understood
and intended, and being expressly covenanted by the taker and Holder of every
Security with every other taker and Holder and the Trustee, that no one or more
Holders of Securities of any series shall have any right in any manner whatever
by virtue or by availing of any provision of this Indenture to affect, disturb
or prejudice the rights of the Holders of any other of such Securities, or to
obtain or seek to obtain priority over or preference to any other such Holder,
or to enforce any right under this Indenture, except in the manner herein
provided, and that all proceedings in law or in equity shall be instituted, had
and maintained in the manner herein provided for the equal, ratable and common
benefit of all Holders of Securities of the applicable series. For the
protection and enforcement of the provisions of this Section 7.04, each and
every Security Holder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Nothing herein contained shall, however, affect or impair the right, which
is absolute and unconditional, of any Security Holder to receive, and to
institute suit to enforce the payment of, the principal of and premium, if any,
and interest on the Holder's Securities at and after the respective due dates
(including maturity by call for redemption, declaration pursuant to this
Indenture which has not been rescinded pursuant to Section 7.01 or otherwise) of
such principal or premium, if any, or interest, or the obligation of the
Company, which is also absolute and unconditional, to pay the principal of and
premium, if any, and interest on each of the Securities to the respective
Holders thereof at the times and places in the Securities expressed.
SECTION 7.05. No delay or omission of the Trustee or of any Holder of any
of the Securities to exercise any right or power accruing upon any Event of
Default shall impair any such right or power, or shall be construed to be a
waiver of any such default or an acquiescence therein; and, subject to the
provisions of Section 7.04, every power and remedy given by this Article Seven
or by law to the Trustee or to the Security Holders may be exercised from time
to time, and as often as shall be deemed expedient by the Trustee or by the
Security Holders.
SECTION 7.06. Subject to the provisions of Sections 8.01 and 8.02, the
Holders of a majority in aggregate principal amount of the Securities of each
series affected (with all such series voting as a single class) at the time
Outstanding shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee; provided, however, that such
direction shall not be otherwise than in accordance with law and the provisions
of this Indenture, expose the Trustee to personal liability or be unduly
prejudicial to Holders not joining therein, and the Trustee shall have the
right, subject to the provisions of Section 8.01, to decline to
<PAGE> 51
41
follow any such direction if the Trustee, being advised by counsel, determines
that the action so directed may not be lawfully taken, or if the Trustee in good
faith shall, by a responsible officer or officers of the Trustee, determine that
the proceeding so directed would be illegal or involve it in personal liability
or be unjustly prejudicial to the Security Holders not joined in any such
direction, and provided further that nothing in this Indenture shall impair the
right of the Trustee in its discretion to take any action deemed proper by the
Trustee and which is not inconsistent with such direction by the Security
Holders.
Prior to a declaration that the Securities of any series are due and
payable as provided in Section 7.01, the Holders of a majority in aggregate
principal amount of the Securities of such series at the time Outstanding may,
on behalf of the Holders of all of such Securities, waive any past Event of
Default described in clause (c) or (g) of Section 7.01 which relates to less
than all series of Securities then Outstanding (or if the Event of Default
arises under clause (c) or (g) of Section 7.01 and relates to all series of
Securities then Outstanding or arises under clauses (d), (e) or (f) of Section
7.01, the Holders of Securities of a majority in principal amount of all the
Securities then Outstanding (voting as one class) may waive any such default or
Event of Default), and its consequences, except a default in respect of a
covenant or provision hereof which cannot be modified or amended without the
consent of the Holder of each Security affected. In the case of any such waiver,
the Company, the Trustee and the Holders of such Securities shall be restored to
their former positions and rights hereunder, respectively, but no such waiver
shall extend to any subsequent or other default or impair any right consequent
thereon.
Upon any such waiver, such default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 7.07. The Trustee shall, within ninety days after the occurrence
of a default with respect to the Securities of any series, give to the Holders
of the Securities of such series, in the manner and to the extent provided in
subsection (c) of Section 6.04 with respect to reports pursuant to subsection
(a) of said Section 6.04, notice of all defaults with respect to that series
known to the Trustee, unless such defaults shall have been cured before the
giving of such notice (the term "defaults" for the purposes of this Section 7.07
being hereby defined to be the events specified in clauses (a), (b), (c), (d),
(e), (f) and (g) of Section 7.01, not including any periods of grace provided
for therein); provided, that, except in the case of default in the payment of
the principal of (or premium, if any) or interest, if any, on any of the
Securities of such series, or in the payment of any sinking or purchase fund
installment, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee, or a trust committee of
directors and/or responsible officers, of the Trustee in good faith determines
that the withholding of such notice is in the best interests of the Security
Holders of such series.
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42
SECTION 7.08. All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; provided,
that the provisions of this Section 7.08 shall not apply to any suit instituted
by the Trustee, to any suit instituted by any Security Holder, or group of
Security Holders, of any series holding in the aggregate more than ten percent
(10%) in principal amount of the Securities of such series Outstanding; or, in
the case of any suit relating to or arising under clause (c) or (g) of Section
7.01 (if the suit relates to Securities of more than one but less than all
series), ten percent (10%) in aggregate principal amount of Securities then
Outstanding and affected thereby; or, in the case of any suit relating to or
arising under clause (c) or (g) (if the suit under clause (c) or (g) relates to
all the Securities then Outstanding), or clause (d), (e) or (f) of Section 7.01,
ten percent (10%) in aggregate principal amount of all Securities then
Outstanding; or to any suit instituted by any Securityholder for the enforcement
of the payment of the principal of or premium, if any, or interest on any
Security on or after the due date expressed in such Security or any date fixed
for redemption.
ARTICLE EIGHT
CONCERNING THE TRUSTEE
SECTION 8.01. The Trustee, prior to the occurrence of an Event of Default
with respect to the Securities of any series and after the curing of all Events
of Default which may have occurred with respect to such series, undertakes to
perform such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default with respect to the Securities of any
series has occurred (which has not been cured) the Trustee shall exercise such
of the rights and powers vested in it by this Indenture, and use the same degree
of care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his own affairs.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee pursuant to any provision of this Indenture, shall examine them to
determine whether they conform to the requirements of this Indenture.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act,
or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to the
Securities of any series and after the curing of all such Events of Default
with respect to such series which may have occurred:
<PAGE> 53
43
(i) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any certificates
or opinions furnished to the Trustee and conforming to the requirements
of this Indenture;
(b) the Trustee shall not be personally liable for any error of
judgment made in good faith by a responsible officer or responsible
officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be personally liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a majority in principal
amount of the Securities at the time Outstanding (determined as provided in
Section 9.04) relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Indenture.
None of the provisions of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any personal financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if 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.
SECTION 8.02. Except as otherwise provided in Section 8.01:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate,
certificate of auditors, or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond,
debenture or other paper or document reasonably believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(b) Any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an instrument signed in the name
of the Company by the Chairman of the Board or the President or any Vice
President and the Secretary or an Assistant Secretary or the Treasurer or
an Assistant Treasurer or the Controller (unless other evidence in respect
thereof be herein specifically prescribed); and any resolution of the Board
of Directors may be evidenced to the Trustee by a copy thereof certified by
the Secretary or an Assistant Secretary of the Company;
<PAGE> 54
44
(c) 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 or suffered or
omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;
(d) The Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture or to institute, conduct or
defend any litigation hereunder or in relation thereto at the request,
order or direction of any of the Security Holders, pursuant to the
provisions of this Indenture, unless such Security Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby; nothing
herein contained shall, however, relieve the Trustee of the obligation,
upon the occurrence of an Event of Default (which has not been cured) to
exercise such of the rights and powers vested in it by this Indenture, and
to use the same degree of care and skill in their exercise, as a prudent
person would exercise or use under the circumstances in the conduct of his
own affairs;
(e) The Trustee shall not be personally liable for any action taken or
omitted by it in good faith and reasonably believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Indenture;
(f) Prior to the occurrence of an Event of Default hereunder and after
the curing of all Events of Default, 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,
consent, order, approval, bond, debenture or other paper or document,
unless requested in writing so to do by the Holders of not less than a
majority in aggregate principal amount of the Securities of all series
affected then Outstanding; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely
to be incurred by it in the making of such investigation is, in the opinion
of the Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expense or liability as a condition to so
proceeding. The reasonable expense of every such examination shall be paid
by the Company or, if paid by the Trustee, shall be repaid by the Company
upon demand; 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.
SECTION 8.03. The recitals contained herein and in the Securities (other
than the certificate of authentication on the Securities) shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of any of the Securities
or of the proceeds of such Securities, or for the use or application of any
moneys paid over by the Trustee in accordance with any provision of this
Indenture, or for the use or application of any moneys received by any paying
agent other than the Trustee.
<PAGE> 55
45
SECTION 8.04. The Trustee or any paying agent or calculation agent or any
Security Registrar, in its individual or any other capacity, may become the
owner or pledgee of Securities with the same rights it would have if it were not
Trustee, paying agent, calculation agent, or Security Registrar.
SECTION 8.05. Subject to the provisions of Article Four, all moneys
received by the Trustee shall, until used or applied as herein provided, be held
in trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any moneys received by it hereunder
except such as it may agree in writing with the Company to pay thereon. So long
as no Event of Default shall have occurred and be continuing, all interest
allowed on any such moneys shall be paid from time to time upon the written
order of the Company, signed by its Chairman of the Board or President or any
Vice President or Treasurer or an Assistant Treasurer.
SECTION 8.06. The Company covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to, reasonable compensation
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) for all services rendered by it
in the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties hereunder of the Trustee, and the
Company will pay or reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all persons not regularly in its employ) except any such expense, disbursement
or advance as may arise from its negligence or bad faith. The Company also
covenants to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on the part
of the Trustee, and arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim of liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligations of the
Company under this Section 8.06 to compensate the Trustee and to pay or
reimburse the Trustee for expenses, disbursements and advances shall constitute
additional indebtedness hereunder. Such additional indebtedness shall be secured
by a lien prior to that of the Securities upon any property and funds held or
collected by the Trustee as such, except funds held in trust for the benefit of
the Holders of particular Securities.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 7.01(d) or Section 7.01(e), the expenses
and the compensation for the services are intended to constitute expenses of
administration under any bankruptcy law.
The Company's obligations under this Section 8.06 and any lien arising
hereunder shall survive the resignation or removal of any Trustee, the discharge
of the Company's obligations pursuant to Article Four of this Indenture and/or
the termination of this Indenture.
<PAGE> 56
46
SECTION 8.07. Except as otherwise provided in Section 8.01, whenever in
the administration of the trusts of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
suffering or omitting any action hereunder, such matter (unless other evidence
in respect thereof be herein specifically prescribed) may be deemed to be
conclusively proved and established by an Officers' Certificate, and such
certificate shall be full warrant to the Trustee for any action taken, suffered
or omitted by it under the provisions of this Indenture upon the faith thereof.
SECTION 8.08. If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act of 1939, 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 of 1939 and this
Indenture. To the extent permitted by such Act, the Trustee shall not be deemed
to have a conflicting interest by virtue of being a trustee for another series
of Securities under this Indenture. Nothing herein shall prevent the Trustee
from filing with the Securities and Exchange Commission the application referred
to in the second to last paragraph of Section 310(b) of the Trust Indenture Act
of 1939.
SECTION 8.09. The Trustee hereunder shall at all times be a corporation
organized and doing business under the laws of the United States or of any State
or Territory or of the District of Columbia, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least twenty-five million dollars, subject to supervision or examination by
Federal, State, Territorial, or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section 8.09, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time the
Trustee shall cease to be eligible in accordance with provisions of this Section
8.09, the Trustee shall resign immediately in the manner and with the effect
specified in Section 8.10.
SECTION 8.10. (a) The Trustee, or any successor hereafter appointed, may
at any time resign with respect to one or more series of Securities and be
discharged from the trust hereby created by giving written notice thereof to the
Company and by mailing notice of such resignation to the Holders of then
Outstanding Securities of such series affected at their addresses as they appear
on the Security Register. Upon receiving such notice of resignation, the Company
shall promptly appoint a successor trustee or trustees with respect to the
applicable series by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee or trustees. If no
successor trustee shall have been so appointed with respect to any series of
Securities and have accepted appointment within thirty days after the
publication of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor trustee,
or any Security Holder who has been a bona fide holder of a Security or
Securities of the applicable series for at least
<PAGE> 57
47
six months may, subject to the provisions of Section 7.08, on behalf of himself
and all others similarly situated, petition any such court for the appointment
of a successor trustee. Such court may thereupon after such notice, if any, as
it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur --
(i) the Trustee shall fail to comply with the provisions of
Section 8.08 with respect to any series of Securities after written
request therefor by the Company or by any Security Holder who has been a
bona fide holder of a Security or Securities of the applicable series
for at least six months, or
(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 8.09 and shall fail to resign after written
request therefor by the Company or by any such Security Holder, or
(iii) the Trustee shall become incapable of acting with respect to
any series of Securities, or shall be adjudged a bankrupt or insolvent,
or a receiver of the Trustee or of its property shall be appointed, or
any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, the Company may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to the provisions of
Section 7.08, any Security Holder who has been a bona fide holder of a Security
or Securities of the applicable series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
trustee with respect to such series. Such court may thereupon after such notice,
if any, as it may deem proper and prescribe, remove the Trustee and appoint a
successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series at the time outstanding may at any time remove the
Trustee and appoint a successor trustee with respect to Securities of such
series by written instrument or instruments, in duplicate, signed by such
Holders or their attorneys-in-fact duly authorized, one complete set of which
instruments shall be delivered to the Trustee so removed and one complete set to
the successor so appointed.
(d) Any resignation or removal of the Trustee with respect to any series
and appointment of a successor trustee with respect to such series pursuant to
any of the provisions of this Section 8.10 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 8.11.
(e) The Company shall give notice of each resignation and each removal of
the Trustee with respect to any series and each appointment of a successor
trustee with respect to such series by mailing written notice of such event by
first-class mail, postage prepaid, to the Holders of Securities of such series
as their names and
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48
addresses appear in the Security Register. Each notice shall include the name of
the successor trustee with respect to such series and the address of its
principal corporate trust office.
SECTION 8.11. Any successor trustee appointed as provided in Section 8.10
shall execute, acknowledge and deliver to the Company and to its predecessor
trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee with respect to any applicable
series shall become effective and such successor trustee, without any further
act, deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations with respect to such series of its predecessor hereunder,
with like effect as if originally named as trustee for such series herein. The
predecessor trustee shall, nevertheless, at the written request of the successor
trustee, pay over to the successor trustee all moneys at the time held by it
hereunder, subject nevertheless to its lien, if any, provided for in Section
8.06; and the Company and the predecessor trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for more
fully and certainly vesting and confirming in the successor trustee all such
rights, powers, duties and obligations.
If a successor trustee is appointed with respect to the Securities of one
or more (but not all) series, the Company, the predecessor trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor trustee with respect to the
Securities of any series as to which the predecessor trustee is not retiring
shall continue to be vested in the predecessor trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such trustees co-trustees of the same trust and that
each such trustee shall be trustee of a trust or trusts as if they were created
under separate indentures.
No successor trustee with respect to any series of Securities shall accept
appointment as provided in this Section 8.11 unless at the time of such
acceptance such successor trustee shall be qualified under the provisions of
Section 8.08 and eligible under the provisions of Section 8.09.
SECTION 8.12. Any corporation into which the Trustee may be merged or with
which it may be consolidated, or any corporation resulting from any merger or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be qualified under the provisions of
Section 8.08 and eligible under the provisions of Section 8.09, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding. 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
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deliver the Securities so authenticated with the same effect as if such
successor trustee had itself authenticated such Securities.
SECTION 8.13. The Trustee shall comply with Section 311(a) of the Trust
Indenture Act of 1939 excluding any creditor relationship listed in Section
311(b) of the Trust Indenture Act of 1939. A Trustee who has resigned or been
removed shall be subject to Section 311(a) of the Trust Indenture Act of 1939 to
the extent indicated therein.
ARTICLE NINE
CONCERNING THE SECURITY HOLDERS
SECTION 9.01. Whenever in this Indenture it is provided that the Holders
of a specified percentage in aggregate principal amount of Outstanding
Securities of any or all series may take any action (including the making of any
demand or request, the giving of any notice, consent or waiver or the taking of
any other action) the fact that at the time of taking any such action the
Holders of such specified percentage have joined therein may be evidenced (a) by
any instrument or any number of instruments of similar tenor executed by
Security Holders in person or by attorney or proxy appointed in writing, or (b)
by the record of the Holders of Securities voting in favor thereof at any
meeting of Security Holders duly called and held in accordance with the
provisions of Article Ten, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of Security Holders.
SECTION 9.02. Subject to the provisions of Section 8.01, proof of the
execution of any instrument by a Security Holder or his attorney or proxy and
proof of the holding by any person of any of the Securities shall be sufficient
for any purpose of this Indenture if made in the following manner:
(a) The fact and date of the execution by any such person of any
instrument may be proved by the certificate of any notary public, or other
officer of any jurisdiction of or within the United States of America
authorized to take acknowledgments of deeds, that the person executing such
instrument acknowledged to him the execution thereof, or by an affidavit of
a witness to such execution sworn to before any such notary or other such
officer. Where such execution is by an officer of a corporation or
association or a member of a partnership on behalf of such corporation,
association or partnership, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument, or the authority of the person executing
the same, may also be proved in any other manner that the Trustee deems
sufficient.
(b) The ownership of Securities shall be proved by the register of
such Securities or by a certificate of any duly appointed registrar
thereof.
The Trustee shall not be bound to recognize any person as a Security Holder
unless and until his title to the Securities held by him is proved in the manner
in this Article Nine provided.
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The record of any Security Holders' meeting shall be proved in the manner
provided in Section 10.06.
The Trustee may require such additional proof of any matter referred to in
this Section 9.02 as it shall deem necessary.
SECTION 9.03. The Company, the Trustee, and any paying agent and any
Security Registrar may deem and treat the person in whose name any Security
shall be registered upon the books of the Company as the absolute owner of such
Security (whether or not such Security shall be overdue and notwithstanding any
notice of ownership or writing thereon made by anyone other than the Company or
any Security Registrar) for the purpose of receiving payment of or on account of
the principal of, premium, if any, and interest on such Security and for all
other purposes; and neither the Company nor the Trustee nor any paying agent nor
any Security Registrar shall be affected by any notice to the contrary. All such
payments so made to any such registered Holder for the time being or upon his
order shall be valid and, to the extent of the sum or sums so paid, effectual to
satisfy and discharge the liability for moneys payable upon any such Security.
SECTION 9.04. In determining whether the Holders of the requisite
aggregate principal amount of Outstanding Securities of any or all series have
concurred in any direction, consent or waiver under this Indenture, Securities
which are owned by the Company or any other obligor on the Securities, or by any
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any other obligor on the Securities,
shall be disregarded and deemed not to be outstanding for the purpose of any
such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver
only Securities which the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding for the purposes of this Section 9.04, if the pledgee shall
establish to the satisfaction of the Trustee the pledgee's right to vote such
Securities and that the pledgee is not a person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company or any such other obligor. In case of a dispute as to such right, any
decision by the Trustee taken upon the written advice of counsel shall be full
protection to the Trustee. Upon request of the Trustee, the Company shall
furnish to the Trustee promptly an Officers' Certificate listing and identifying
all Securities, if any, known by the Company to be owned or held by or for the
account of any of the above-described persons; and, subject to Sections 8.01 and
8.02, the Trustee shall be entitled to accept such Officer's Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of any such
determination unless Trustee has actual knowledge to the contrary.
SECTION 9.05. Any demand, request, waiver, consent or vote of the Holder
of any Security shall be conclusive and binding upon such Holder and upon all
future Holders and owners of such Security, and of any Security issued in
exchange therefor or in place thereof, irrespective of whether or not any
notation in regard thereto is made upon such Security. Any action taken by the
Holders of the specified percentage in
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51
aggregate principal amount of the Securities of any or all series, as the case
may be, specified in this Indenture in connection with such action shall be
conclusively binding upon the Company, the Trustee and the Holders of all the
Securities so specified.
ARTICLE TEN
SECURITY HOLDERS' MEETINGS
SECTION 10.01. A meeting of the Holders of the Securities or any series
thereof may be called at any time and from time to time pursuant to the
provisions of this Article Ten for any of the following purposes:
(a) to give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to consent to the waiving of any default
as to the Securities or any series thereof hereunder and its consequences,
or to take any other action authorized to be taken by Security Holders
pursuant to any of the provisions of Article Seven;
(b) to remove the Trustee as to the Securities or any series thereof
and appoint a successor trustee pursuant to the provisions of Article
Eight;
(c) to consent to the execution of an indenture or indentures as to
the Securities or any series thereof supplemental hereto pursuant to the
provisions of Section 11.02; or
(d) to take any other action authorized to be taken by or on behalf of
the Holders of any specified aggregate principal amount of the Outstanding
Securities or any or all series thereof under any other provision of this
Indenture, or authorized or permitted by law.
SECTION 10.02. The Trustee may at any time call a meeting of the Holders
of the Securities or any series thereof to take any action specified in Section
10.01, to be held at such time and at such place in the Borough of Manhattan,
City and State of New York, or in the City of Melbourne, State of Florida, as
the Trustee shall determine. Notice of every meeting of Security Holders,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be mailed by the Company,
first class postage prepaid, to the Holders of all Securities or all Securities
of the applicable series, as the case may be, at their last addresses as they
shall appear upon the Security Register.
Any meeting of the Holders of the Securities or any series thereof shall be
valid without notice if the Holders of all Securities or all Securities of the
applicable series, as the case may be, then Outstanding are present in person or
by proxy, or if notice is waived before or after the meeting by the Holders of
all such Securities or all Securities of the applicable series, as the case may
be, Outstanding, and if the Company and the Trustee are either present by duly
authorized representatives or have, before or after the meeting, waived notice.
SECTION 10.03. In case at any time the Company, pursuant to resolution of
its Board of Directors, or the Holders of at least twenty percent (20%) in
aggregate
<PAGE> 62
52
principal amount of the Securities or any series thereof then Outstanding, shall
have requested the Trustee to call a meeting of the Holders of the Securities or
any series thereof, as the case may be, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee of the Securities or the applicable series shall not have mailed the
notice of such meeting within twenty days after receipt of such request, then
the Company or the Holders of Securities in the amount above specified may
determine the time and the place in the City of Melbourne, State of Florida, or
in the Borough of Manhattan, City and State of New York, for such meeting and
may call such meeting to take any action authorized in Section 10.01, by mailing
notice thereof as provided in Section 10.02.
SECTION 10.04. To be entitled to vote at any meeting of Security Holders a
person shall (a) be a Holder of one or more Securities and, if the meeting is of
the Holders of one or more series of Securities, of the applicable series; or
(b) be a person appointed by an instrument in writing as proxy for the Holder or
Holders of such Securities. The only persons who shall be entitled to be present
or to speak at any meeting of Security Holders shall be the persons entitled to
vote at such meeting and their counsel and any representatives of the Trustee
and its counsel and any representatives of the Company and its counsel.
SECTION 10.05. Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Security Holders, in regard to proof of the holding of Securities and
of the appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, and submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall be proved in
the manner specified in Section 9.02 and the appointment of any proxy shall be
proved in the manner specified in said Section 9.02 or by having the signature
of the person executing the proxy witnessed or guaranteed by any bank or trust
company satisfactory to the Trustee.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Security Holders as provided in Section 10.03, in which case the
Company or the Security Holders calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of the Holders of a
majority in principal amount of the Securities represented at the meeting and
entitled to vote.
Subject to the provisions of Section 9.04, at any meeting each Holder of
Securities or Securities of the applicable series, as the case may be, or proxy
shall be entitled to one vote for each $1,000 principal amount of Securities
entitled to vote at the meeting, provided, however, that no vote shall be cast
or counted at any meeting in respect of any Securities challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote other than by virtue of
Securities held by him or instruments in writing as aforesaid duly designating
him as the person to vote on behalf of other Security Holders. Any meeting
<PAGE> 63
53
of Security Holders duly called pursuant to the provisions of Section 10.02 or
10.03 may be adjourned from time to time, and the meeting may be held as so
adjourned without further notice.
SECTION 10.06. The vote upon any resolution submitted to any meeting of
Security Holders shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities or of their representatives by proxy and
the principal amount of the Securities voted by the ballot. The permanent
chairman of the meeting shall appoint two inspectors of votes, who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Security Holders shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts, setting forth a
copy of the notice of the meeting and showing that said notice was published as
provided in Section 10.02. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 10.07. Nothing in this Article Ten contained shall be deemed or
construed to authorize or permit, by reason of any call of a meeting of Security
Holders or any rights expressly or impliedly conferred hereunder to make such
call, any hindrance or delay in the exercise of any right or rights conferred
upon or reserved to the Trustee or to the Holders of Securities or any series
thereof under any of the provisions of this Indenture or of the Securities.
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
SECTION 11.01. The Company, when authorized by a Board Resolution, and the
Trustee, subject to the conditions and restrictions in this Indenture contained,
may from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act of 1939 as then in effect) for one or more of the following
purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or assets;
(b) to evidence the succession of another corporation to the Company,
or successive successions, and the assumptions by the successor corporation
of the covenants, agreements and obligations of the Company pursuant to
Article Twelve;
<PAGE> 64
54
(c) to add to the covenants and agreements of the Company contained in
this Indenture, for the benefit of the Holders of the Securities, or to
surrender any right or power herein reserved to or conferred upon the
Company;
(d) to cure any ambiguity or to correct or supplement any defective or
inconsistent provision contained in this Indenture or in any supplemental
indenture, provided that no such action shall adversely affect the
interests of the Holders of the Securities;
(e) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 2.03;
(f) 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 8.11; and
(g) to make such provisions with respect to matters or questions
arising under this Indenture as may be necessary or desirable and not
inconsistent with this Indenture, provided that such other provisions shall
not adversely affect the interest of the Holders of the Securities.
The Trustee is hereby authorized to join with the Company in the execution
of any supplemental indenture authorized or permitted by the terms of this
Indenture, to make any further appropriate agreements and stipulations which may
be therein contained, but the Trustee shall not be obligated to enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
11.01 may be executed by the Company and the Trustee without the consent of the
Holders of any of the Securities at the time outstanding, notwithstanding any of
the provisions of Section 11.02.
SECTION 11.02. With the consent (evidenced as provided in Section 9.01) of
the Holders (or persons entitled to vote, or to give consents respecting the
same) of not less than 66 2/3% in aggregate principal amount of the Securities
at the time Outstanding of all series affected by such supplemental indenture
(voting as one class), the Company, when authorized by a Board Resolution, and
the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act of 1939 as then in effect) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any supplemental indenture or of modifying in any manner
the rights and obligations of the Holders of the Securities of each such series
and of the Company; provided, however, that no such supplemental indenture shall
(a) extend the fixed maturity of any Securities, or reduce the principal amount
thereof, or reduce the rate or extend the time of payment of interest thereon,
or reduce any premium payable upon the redemption thereof, or reduce the amount
of the
<PAGE> 65
55
principal of an Original Issue Discount Security that would be due and payable
upon an acceleration of the maturity thereof pursuant to Section 7.01 or the
amount thereof provable in bankruptcy pursuant to Section 7.02, or impair or
affect the right of any Security Holder to institute suit for the payment
thereof or, if the Securities provide therefor, any right of repayment at the
option of the Security Holder, in each case without the consent of the Holder of
each Security so affected, or (b) reduce the aforesaid percentage of Securities
of any series, the Holders of which are required to consent to any such
supplemental indenture, without the consent of the Holders of each Security so
affected.
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 Holders of Securities of such series, with respect to such covenant or
provision, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities of any other series.
Upon the request of the Company, accompanied by a copy of a resolution of
its Board of Directors certified by the Secretary or an Assistant Secretary of
the Company authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Security Holders
as aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion but shall not be obligated to enter into
such supplemental indenture.
It shall not be necessary for the consent of the Security Holders under
this Section 11.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
The Company may in its discretion establish a record date with respect to
any action to be taken pursuant to this Section.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 11.02, the
Company shall mail written notice, setting forth in general terms the substance
of such supplemental indenture, by first-class mail, postage prepaid, to the
Holders of the then Outstanding Securities of each series affected thereby as
their names and addresses appear in the Security Register. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
SECTION 11.03. Upon the execution of any supplemental indenture pursuant
to the provisions of this Article Eleven or of Article Twelve, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Company and the Holders of Securities
of each series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such
<PAGE> 66
56
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 11.04. Securities authenticated and delivered after the execution
of any supplemental indenture affecting such Securities pursuant to the
provisions of this Article Eleven, or after any action taken at a Security
Holders' meeting pursuant to Article Ten, may bear a notation in form approved
by the Trustee as to any matter provided for in such supplemental indenture or
as to any action taken at any such meeting; and, in such case, suitable notation
may be made upon Outstanding Securities of each series affected thereby after
proper presentation and demand. If the Company or the Trustee shall so
determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Board of Directors of the Company, to any modification of this
Indenture contained in any such supplemental indenture, or to any action taken
at any such meeting, may be prepared by the Company, authenticated by the
Trustee and delivered in exchange for the Securities affected by a supplemental
indenture then Outstanding, upon demand of, and without cost to, the Holders
thereof, upon surrender of such Securities.
SECTION 11.05. The Trustee, subject to the provisions of Section 8.01, may
receive an Officers' Certificate and Opinion of Counsel as conclusive evidence
that any supplemental indenture executed pursuant to this Article Eleven is
authorized or permitted by the terms of this Indenture and that it is not
inconsistent therewith.
ARTICLE TWELVE
CONSOLIDATION, MERGER OR SALE
SECTION 12.01. The Company covenants and agrees that it will not
consolidate or merge with or into any other person, or sell or transfer all or
substantially all of its property and assets to any other person, (a) unless the
person formed by or resulting from any such consolidation or merger, or which
shall have received the transfer of all or substantially all of the property and
assets of the Company, shall assume the due and punctual performance and
observance of all of the covenants and conditions to be performed or observed by
the Company hereunder, (b) unless the Company, such person or such successor
person, as the case may be, shall not, immediately after such consolidation,
merger, sale or transfer, be in default in the performance of any such covenant
or condition, or (c) if, upon such consolidation, merger, sale or transfer
becoming effective any of the property or assets of the Company would become or
be subject to any mortgage or other lien (an "additional lien"), other than
liens existing thereon prior thereto and liens permitted under the first
paragraph and clauses (a) through (h) and (j) of the second paragraph of Section
5.11 hereof, unless (x) prior to such consolidation, merger, sale or transfer
all of the Securities at the time Outstanding shall be directly secured (equally
and ratably with any other indebtedness of the Company then entitled thereto) by
a mortgage or other lien ranking prior to such additional lien, in form
satisfactory to the Trustee, on all of the property and assets of the Company,
and accretions thereto, which would upon such consolidation, merger, sale or
transfer become subject to such additional lien, such mortgage or other lien
<PAGE> 67
57
securing the Securities to be effective for so long as such property and assets
shall remain subject to such additional lien, or (y) the Company makes effective
provision whereby all Securities Outstanding immediately after such
consolidation, merger, sale or transfer will be directly secured by a mortgage
or other lien in form satisfactory to the Trustee equally and ratably with (or
prior to) any and all obligations, indebtedness and claims secured by such
additional lien, upon such property and assets of the Company (or the person
resulting from or surviving such consolidation or merger, if not the Company, or
the person to which such sale or transfer shall have been made, as the case may
be) as are subject to such additional lien, such mortgage or other lien securing
the Securities to be effective for so long as such property and assets shall
remain subject to such additional lien.
Subject to the provisions of Section 8.01, the Trustee may receive an
Opinion of Counsel as conclusive evidence that the instrument or instruments
evidencing any mortgage and pledge referred to above comply with the foregoing
conditions and provisions of this Section 12.01.
SECTION 12.02. Subject to the provisions of Section 12.01, nothing in this
Indenture shall prevent any consolidation or merger of the Company with or into
any other person, or any sale, or transfer of all or substantially all of the
property and assets of the Company to any other person lawfully entitled to
acquire the same; provided, however, and the Company covenants and agrees, that
any such consolidation, merger, sale, or transfer shall be upon the condition
that the due and punctual payment of the principal, premium, if any, and
interest of all the Securities according to their tenor, and the due and
punctual performance and observance of all the terms, covenants and conditions
of the Indenture to be kept or performed by the Company shall, by an indenture
supplemental hereto, executed and delivered to the Trustee, be assumed by the
person formed by or resulting from any such consolidation or merger (provided
that no such supplemental indenture shall be required if the Company is the
surviving person upon the consolidation or merger), or which shall have received
the transfer of all or substantially all of the property and assets of the
Company, just as fully and effectually as if such successor person had been the
original party of the first part hereto. Every such successor person upon
executing an indenture supplemental hereto, as provided in this Section 12.02,
in form satisfactory to the Trustee, shall succeed to and be substituted for the
Company with the same effect as if it had been named herein as party of the
first part hereto; and any order, certificate, statement, request, instructions,
advice or resolutions of the Board of Directors or officers of the Company
provided for in this Indenture may be made by like officials of such successor
person.
In case of any such consolidation, merger, sale, or transfer such changes
in phraseology and form (but not in substance) may be made in the Securities
thereafter to be isssued as may be appropriate.
In the event of any such sale or transfer (other than a transfer by way of
lease), the Company or any successor person which shall theretofore have become
such in the manner described in this Article shall be discharged from all
obligations and covenants under this Indenture and the Securities.
<PAGE> 68
58
Subject to the provisions of Section 8.01, the Trustee may receive an
Opinion of Counsel as conclusive evidence that any such indenture supplemental
hereto complies with the foregoing conditions and provisions of this Section
12.02.
This Section 12.02 shall be applicable to successive consolidations or
mergers to which the Company (including any successor) is a party and to
successive sales or transfers by the Company (including any successor).
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.01. All the covenants, stipulations, promises and agreements
contained in this Indenture by or in behalf of the Company shall bind its
successors and assigns, whether so expressed or not.
SECTION 13.02. Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force and
effect by the like board, committee or officer of any corporation that shall at
the time be the lawful successor of the Company.
SECTION 13.03. Subject to Section 5.09, the Company by instrument in
writing executed by authority of a majority of its Board of Directors and
delivered to the Trustee may surrender any of the powers reserved to the Company
and thereupon such power so surrendered shall terminate both as to the Company
and as to any successor corporation.
SECTION 13.04. Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
the Holders of Securities to or on the Company may be given or served by being
deposited postage prepaid in a post-office letterbox addressed (until another
address is filed in writing by the Company with the Trustee) as follows: Harris
Corporation, 1025 W. NASA Boulevard, Melbourne, Florida 32919, Attention:
Secretary. Any notice, election, request or demand by any Security Holder to or
upon the Trustee shall be deemed to have been sufficiently given or made, for
all purposes, if given or made at the Corporate Trust Office of the Trustee,
which presently is located at 450 West 33rd Street, New York, New York 10001.
Where this Indenture provides for notice to Holders of Securities, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder entitled
thereto, at his last address as it appears in the Security Register. In any case
where notice to such 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
<PAGE> 69
59
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.
SECTION 13.05. In any case where the date of maturity of interest or
principal of the Securities of any series or the date of redemption of any
Security of any series shall not be a Business Day, then payment of interest or
principal or premium, if any, may be made on the next succeeding Business Day or
as otherwise provided in the Securities of any series with the same force and
effect as if such payment had been made or such Security surrendered on the
nominal date of maturity or redemption, and no interest shall accrue for the
period after such nominal date.
SECTION 13.06. Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent (including any covenants compliance with which constitutes
a condition precedent), if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent (including any
covenants compliance with which constitutes a condition precedent) have been
complied with.
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture (other than annual certificates provided pursuant to Section
5.13) shall include (a) a statement that the person making such certificate or
opinion has read such covenant or condition and the definitions relating
thereto; (b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based; (c) a statement that, in the opinion of such
person, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and (d) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
Any certificate, statement or opinion of any 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 that the certificate or
opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, upon a certificate, statement 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 that the certificate, statement or opinion or
representations with respect to the matters upon which his certificate,
statement or opinion may be based as aforesaid are erroneous, or in the exercise
of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Company or of
counsel may be based, in so far as it relates to accounting matters, upon a
certificate or opinion
<PAGE> 70
60
of or representations by an independent accountant or firm of independent
accountants in the employ of the Company, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
SECTION 13.07. If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with a provision of the Trust Indenture Act of
1939 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 of 1939 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.
SECTION 13.08. In case, by reason of the temporary or permanent suspension
of publication of any newspaper, or by reason of any other cause, it shall be
impossible to make publication of any notice required hereby in a newspaper as
herein provided, then such publication or other notice in lieu thereof as shall
be made with the approval of the Trustee shall constitute a sufficient
publication of such notice. Such publication or other notice shall, so far as
may be, approximate the terms and conditions of the publication in lieu of which
it is given.
SECTION 13.09. In case any one or more of the provisions contained in this
Indenture or in the Securities of any series shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Indenture or of
such Securities, but this Indenture and such Securities shall be construed as if
such invalid or illegal or unenforceable provision had never been contained
herein or therein.
SECTION 13.10. This Indenture shall be construed in accordance with and
governed by the laws of the State of New York, except as may otherwise be
required by mandatory provisions of law.
SECTION 13.11. No recourse under or upon any obligation, covenant or
agreement contained in this Indenture, or in any Security, or because of any
indebtedness evidenced thereby, shall be had against any incorporator, as such
or against any past, present or future stockholder, officer or director, as
such, of the Company or of any successor, either directly or through the Company
or any successor, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders thereof and as part of the
consideration for the issue of the Securities.
SECTION 13.12. Nothing in this Indenture or in the Securities, expressed
or implied, shall give or be construed to give to any person, other than the
parties hereto and their successors and the Holders of the Securities, any legal
or equitable right, remedy or claim under this Indenture or under any covenant
or provision herein
<PAGE> 71
61
contained, all such covenants and provisions being for the sole benefit of the
parties hereto and their successors and of the Holders of the Securities.
SECTION 13.13. This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument. Chemical Bank, the party of
the second part, hereby accepts the trusts in this Indenture declared and
provided, upon the terms and conditions hereinabove set forth.
<PAGE> 72
62
IN WITNESS WHEREOF, HARRIS CORPORATION, the party of the first part, has
caused this Indenture to be signed in its corporate name and acknowledged by its
Senior Vice President -- Chief Financial Officer, and its corporate seal to be
affixed hereunto or impressed hereon, duly attested by its Assistant Secretary;
and CHEMICAL BANK, the party of the second part, has caused this Indenture to be
signed and acknowledged by one of its authorized representatives, and its
corporate seal to be affixed hereunto or impressed hereon, duly attested, as of
the day and year first above written.
HARRIS CORPORATION
[SEAL]
By: /s/ B. R. ROUB
------------------------------
Senior Vice President -- Chief
Financial Officer
Attest:
/s/ KAREN G. FINK
-----------------------------
Assistant Secretary
CHEMICAL BANK
[SEAL]
By: /s/ MICHAEL SMITH
-------------------------------
Vice President
Attest:
/s/ FRANCINE SPRINGER
-----------------------------
Trust Officer
<PAGE> 73
63
STATE OF FLORIDA )
) ss:
COUNTY OF BREVARD )
On the 1st day of May, 1996, before me personally came Bryan R. Roub, to me
known, who, being by me duly sworn, did depose and say that he is Senior Vice
President -- Chief Financial Officer of HARRIS CORPORATION, one of the
corporations described in and which executed the above instrument; that he knows
the corporate seal of said corporation; that one of the seals affixed to the
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/ MARGARET E. VICKERY
-----------------------------------
Notary Public
Margaret E. Vickery
Notary Public -- State of Florida
My Commission Expires January 25,
1997
Comm. # CC254048
[SEAL]
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the 1st day of May, 1996, before me personally came Michael Smith, to me
known, who, being by me duly sworn, did depose and say that he is Vice President
of CHEMICAL BANK, one of the corporations described in and which executed the
above instrument; that he knows the corporate seal of said corporation; that one
of the seals affixed to the 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/ EMILY FAYAN
----------------------------------
Notary Public
Emily Fayan
Notary Public, State of New York
No. 24-4737006
Qualified in Kings County
Certificate Filed in New York County
Commission Expires December 31, 1997
[SEAL]
<PAGE> 1
CROWELL & MORING
1001 PENNSYLVANIA AVENUE, N.W.
WASHINGTON, D.C. 20004
202-624-2500
EXHIBIT 5
May 3, 1996
Harris Corporation
1025 West NASA Boulevard
Melbourne, Florida 32919
RE: REGISTRATION STATEMENT ON FORM S-3
$250,000,000 INITIAL OFFERING PRICE OF DEBT SECURITIES
Ladies and Gentlemen:
We have acted as counsel to Harris Corporation, a Delaware corporation (the
"Company"), in connection with an offering pursuant to Rule 415 under the
Securities Act of 1933, as amended (the "Securities Act"), of $250,000,000
maximum aggregate initial public offering price of the Company's debt securities
(the "Debt Securities"), and the corporate proceedings (the "Corporate
Proceedings") taken and to be taken in connection therewith. The Debt Securities
are to be issued under and pursuant to an indenture (the "Indenture"), dated as
of May 1, 1996, between the Company and Chemical Bank, as trustee. We have also
participated in the preparation and filing with the Securities and Exchange
Commission under the Securities Act of a Registration Statement on Form S-3 (the
"Registration Statement") relating to the Debt Securities. In this connection,
we have examined such corporate and other records, instruments, certificates and
documents as we considered necessary to enable us to express this opinion.
Based on the foregoing, it is our opinion that, upon completion of the
Corporate Proceedings, the Debt Securities will have been duly authorized for
issuance and, when each series of Debt Securities is duly executed,
authenticated, issued and delivered, such series will constitute valid and
binding obligations of the Company entitled to the benefits of the Indenture,
enforceable against the Company in accordance with their respective terms except
as (i) the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
Our opinion expressed above is limited to the laws of the State of New
York, the General Corporation Law of the State of Delaware and the federal laws
of the United States of America.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to us under the caption "Legal Matters" therein.
Very truly yours,
CROWELL & MORING
<PAGE> 1
EXHIBIT 12
HARRIS CORPORATION AND SUBSIDIARIES
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
(Millions of Dollars, Except Ratios)
----------------------------------------------------------------------------------------------
Year Ended June 30 Three Quarters Ended March 31
---------------------------------------------------------- -----------------------------
1995 1994 1993 1992 1991 1996 1995
------ ------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C> <C>
EARNINGS:
Income from Continuing
Operations..................... $154.5 $121.9 $111.1 $ 87.5 $ 19.5 $118.1 $101.6
Plus: Income Taxes............... 83.1 71.6 58.7 37.5 (9.7) 63.6 54.7
Fixed Charges................ 82.0 70.0 78.7 85.6 97.6 62.8 61.2
Amortization of Capitalized
Interest................... 1.2 1.2 1.2 1.1 1.1 0.9 0.9
Less: Interest Capitalized During
the Period................. 0.0 (0.3) (0.3) (0.1) (0.1) (0.2) 0.0
------ ------ ------ ------ ------ ------ ------
$321.8 $270.4 $249.4 $211.6 $108.4 $246.2 $218.4
====== ====== ====== ====== ====== ====== ======
FIXED CHARGES:
Interest expense $ 85.4 $ 58.3 $ 59.9 $ 66.0 $ 77.4 $ 49.5 $ 48.1
Plus: Capitalized Interest....... 0.0 0.3 0.3 0.1 0.1 0.2 0.0
Portion of Rents Deemed
Representative of the
Interest Factor............ 17.4 17.4 16.5 19.5 20.1 13.1 13.1
------ ------ ------ ------ ------ ------ ------
$ 92.8 $ 76.0 $ 78.7 $ 85.6 $ 97.6 $ 62.8 $ 61.2
====== ====== ====== ====== ====== ====== ======
RATIO OF EARNINGS TO
FIXED CHARGES..................
3.68 3.50 3.17 2.47 1.11 3.90 3.57
====== ====== ====== ====== ====== ====== ======
</TABLE>
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3, No. 333- ) and related Prospectus of
Harris Corporation for the registration of $250,000,000 of Debt Securities and
to the incorporation by reference therein of our report dated July 27, 1995,
with respect to the consolidated financial statements and schedule of Harris
Corporation and subsidiaries included in its Annual Report (Form 10-K) for the
year ended June 30, 1995, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Jacksonville, Florida
May 3, 1996
<PAGE> 1
EXHIBIT 24
HARRIS CORPORATION
THE UNDERSIGNED, an officer or director of Harris Corporation
("Corporation"), a Delaware corporation, which anticipates filing with the
Securities and Exchange Commission, Washington, D.C., under the provisions of
the Securities Act of 1933, as amended, Registration Statement or post-effective
amendment to Registration Statement on Form S-3 or other appropriate form for
the purpose of registering a public offering of up to $250,000,000 aggregate
principal amount of securities having maturities of more than nine months from
date of issue does hereby constitute and appoint B. R. Roub, R. W. Fay, D. S.
Wasserman, R. L. Ballantyne, and K. G. Fink, and any one of them, with full
power of substitution and resubstitution, as attorneys or attorney to sign for
him and in his name the Registration Statement and any and all amendments and
exhibits thereto, and any and all applications or other documents to be filed
with the Securities and Exchange Commission pertaining to the Registration
Statement or registration contemplated thereby, with full power and authority to
do and perform any and all acts and things whatsoever required or necessary to
be done to effect such registrations as fully to all intents and purposes as he
could do if personally present, hereby ratifying and approving the acts of said
attorneys, and any of them and any such substitute.
EXECUTED AT Melbourne, Florida, this 26th day of April, 1996.
/s/ PHILLIP W. FARMER
- ---------------------------------
Phillip W. Farmer
/s/ ROBERT CIZIK
- ---------------------------------
Robert Cizik
/s/ LESTER E. COLEMAN
- ---------------------------------
Lester E. Coleman
/s/ RALPH D. DENUNZIO
- ---------------------------------
Ralph D. DeNunzio
/s/ JOSEPH L. DIONNE
- ---------------------------------
Joseph L. Dionne
/s/ JOHN T. HARTLEY
- ---------------------------------
John T. Hartley
/s/ KAREN KATEN
- ---------------------------------
Karen Katen
/s/ WALTER F. RAAB
- ---------------------------------
Walter F. Raab
/s/ ALEXANDER B. TROWBRIDGE
- ---------------------------------
Alexander B. Trowbridge
<PAGE> 1
___________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
__________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
__________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ____
__________________________________
CHEMICAL BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
_______________________________________________________
HARRIS CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE 34-0276860
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1025 W. NASA BOULEVARD
MELBOURNE, FLORIDA 32919
(Address of principal executive offices) (Zip Code)
___________________________________________
DEBT SECURITIES
(Title of the indenture securities)
_______________________________________________________
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of
Amendment dated February 17, 1969, August 31, 1977, December 31, 1980,
September 9, 1982, February 28, 1985 and December 2, 1991 (see Exhibit 1 to
Form T-1 filed in connection with Registration Statement No. 33-50010, which
is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to
Commence Business (see Exhibit 2 to Form T-1 filed in connection with
Registration Statement No. 33-50010, which is incorporated by reference).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 33-84460, which
is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Chemical Bank, a corporation organized and existing under the laws of
the State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of New York and State of New York, on the 3RD day of MAY, 1996.
CHEMICAL BANK
By /s/ F. J. Grippo
--------------------------------
F. J. Grippo
Vice President
- 3 -
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
Chemical Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1995, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ................................. $ 6,390
Interest-bearing balances ......................... 2,544
Securities: ..........................................
Held to maturity securities............................ 3,807
Available for sale securities.......................... 26,522
Federal Funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds sold ................................ 750
Securities purchased under agreements to resell ... 259
Loans and lease financing receivables:
Loans and leases, net of unearned income $72,938
Less: Allowance for loan and lease losses 1,917
Less: Allocated transfer risk reserve ... 104
------
Loans and leases, net of unearned income,
allowance, and reserve ............................ 70,917
Trading Assets ....................................... 27,963
Premises and fixed assets (including capitalized
leases)............................................ 1,355
Other real estate owned ............................... 21
Investments in unconsolidated subsidiaries and
associated companies............................... 171
Customer's liability to this bank on acceptances
outstanding ....................................... 1,166
Intangible assets ..................................... 433
Other assets .......................................... 4,822
---------
TOTAL ASSETS .......................................... $147,120
---------
</TABLE>
- 4 -
<PAGE> 5
<TABLE>
<S> <C>
LIABILITIES
Deposits
In domestic offices ................................ $ 47,524
Noninterest-bearing .........................$17,041
Interest-bearing ............................ 30,483
------
In foreign offices, Edge and Agreement subsidiaries,
and IBF's .......................................... 37,690
Noninterest-bearing .........................$ 147
Interest-bearing ............................ 37,543
------
Federal funds purchased and securities sold under agree-
ments to repurchase in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBF's
Federal funds purchased ............................ 9,384
Securities sold under agreements to repurchase ..... 2,166
Demand notes issued to the U.S. Treasury .............. 741
Trading liabilities ................................... 21,847
Other Borrowed money:
With original maturity of one year or less ......... 9,669
With original maturity of more than one year ....... 146
Mortgage indebtedness and obligations under capitalized
leases ............................................. 14
Bank's liability on acceptances executed and outstanding 1,180
Subordinated notes and debentures ..................... 3,411
Other liabilities ..................................... 5,290
TOTAL LIABILITIES ..................................... 139,062
----------
EQUITY CAPITAL
Common stock .......................................... 620
Surplus ............................................... 4,665
Undivided profits and capital reserves ................ 3,055
Net unrealized holding gains (Losses)
on available-for-sale securities ...................... (290)
Cumulative foreign currency translation adjustments ... 8
TOTAL EQUITY CAPITAL .................................. 8,058
----------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL .......................... $147,120
----------
</TABLE>
I, Joseph L. Sclafani, S.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER )DIRECTORS
WILLIAM B. HARRISON )
- 5 -
