As filed with the Securities and Exchange Commission on January 18, 1995.
Registration No. 33- _________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
EQUITABLE OF IOWA COMPANIES
(Exact name of the Registrant as specified in its charter)
Iowa 42-1083593
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
604 Locust Street
P.O. Box 1635
Des Moines, Iowa 50306-1635
(515) 245-6911
(Address and telephone number of Registrant's principal executive offices)
John A. Merriman, Esq.
General Counsel and Secretary
604 Locust Street
P.O. Box 1635
Des Moines, Iowa 50306-1635
(515) 245-6787
(Name, address and telephone number of agent for service)
Copies to:
G. R. Neumann Lynn A. Soukup Gary I. Horowitz
Nyemaster, Goode, McLaughlin, Shaw, Pittman, Potts Simpson Thacher &
Voigts, West, Hansell & & Trowbridge Bartlett
O'Brien, P.C. 2300 N Street, NW 425 Lexington Avenue
1900 Hub Tower Washington, D.C. New York, New York 10017
Des Moines, Iowa 50309 20037 (212) 455-2000
(515) 283-3121 (202) 663-8494
Approximate date of commencement of proposed sale to the public:
From time to time after the Registration Statement becomes
effective.
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].
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
__________________________________________________________________________
Title of Each Proposed Proposed
Class of Maximum Maximum Amount of
Securities to Amount to Aggregate Aggregate Registration
be Registered be Registered 1 Price Per Offering Fee
Unit 2 Price 2
___________________________________________________________________________
<S> <C> <C> <C> <C>
Debt Securities $125,000,000 100% $125,000,000 3 $43,103.75
===========================================================================
<FN>
1 Or, if any Debt Securities are issued (i) at an original issue
discount, such greater principal amount as shall result in an
aggregate initial offering price equal to $125,000,000 to the
registrant, and (ii) with a principal amount denominated in a
foreign currency or composite currency, such amount as shall
result in an aggregate initial offering price equal to
$125,000,000 to the registrant.
2 Estimated solely for the purpose of calculating the registration
fee. Any offering of Debt Securities with a principal amount
denominated in a foreign currency or composite currency will be
treated as the equivalent in U.S. dollars based on the exchange
rate applicable to the purchase of such Debt Securities from the
registrant.
3 Exclusive of accrued interest, if any.
</TABLE>
The Registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date until
the Registrant shall file a further amendment which specifically
states that this Registration Statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of
1933 or until the Registration Statement shall become effective on
such date as the Commission, acting pursuant to Section 8(a), may
determine.
Subject to Completion, Dated January 17, 1995
[Legend on Left Hand Margin]
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.
PROSPECTUS
$125,000,000
EQUITABLE OF IOWA COMPANIES
Debt Securities
Equitable of Iowa Companies (the "Company" or "Equitable") may
from time to time offer its debt securities (the "Debt Securities")
in an aggregate initial offering price expected not to exceed U.S.
$125,000,000 or its equivalent in any other currency or units based
on or relating to foreign currencies. The Debt Securities may be
offered in one or more series in amounts, at prices and on terms to
be determined at the time of sale. The accompanying Prospectus
Supplement sets forth with regard to the series of Debt Securities
in respect of which this Prospectus is being delivered (the "Offered
Securities") the specific designation, aggregate principal amount,
denominations, currency (which may be in United States dollars, in
any other currency or in units based on or relating to foreign cur
rencies), maturity, rate (which may be fixed or variable) and time
of payment of interest, if any, any subordination of the Offered
Securities to other indebtedness of the Company, any terms for
redemption at the option of the Company or the Holder, any terms for
sinking fund payments or analogous obligations, any listing on a
securities exchange or interdealer quotation system, the initial
public offering price and other specific terms of the Offered
Securities, together with the terms of the offering of the Offered
Securities.
The Debt Securities may be offered by the Company directly, or
through agents designated from time to time, through underwriters or
through dealers. The accompanying Prospectus Supplement sets forth
the names of any underwriters, dealers or agents involved in the
sale of the Offered Securities, the principal amounts, if any, to be
purchased by underwriters and the compensation of such underwriters,
dealers or agents. If an agent of the Company or a dealer or
underwriter is involved in the offering of the Offered Securities,
the agent's commission, dealer's purchase price, underwriter's
discount and net proceeds to the Company will be set forth in, or
may be calculated from the information provided in, the Prospectus
Supplement. See "Plan of Distribution".
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.
This Prospectus may not be used to consummate sales of Debt
Securities unless accompanied by a Prospectus Supplement.
The date of this Prospectus is _________, 1995.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and in accordance therewith files reports and other information with the
Securities and Exchange Commission (the "Commission"). Reports and
other information filed by the Company may be inspected and copied
at the public reference facilities maintained by the Commission at
Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the Commission's Regional Offices located at Suite 1400, Citicorp
Center, 500 West Madison Street, Chicago, Illinois 60601, and 13th
Floor, Seven World Trade Center, New York, New York 10048. Copies
of such materials can be obtained by mail from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549, at prescribed rates. The Company's Common Stock
without par value is listed on the New York Stock Exchange, Inc.
Such reports and other information may also be inspected and copied
at the offices of the New York Stock Exchange, Inc., 20 Broad
Street, New York, New York 10005.
The Company has filed with the Commission a Registration Statement
on Form S-3 under the Securities Act of 1933, as amended, with
respect to the Offered Securities. This Prospectus does not contain
all of the information set forth in the Registration Statement,
certain parts of which are omitted in accordance with the rules and
regulations of the Commission. For further information with respect
to the Company and the Offered Securities, reference is made to the
Registration Statement, including the exhibits and schedules
thereto. Statements contained in this Prospectus or in any
Prospectus Supplement as to the contents of any document are not
necessarily complete and are qualified in all respects by reference
to the exhibits to the Registration Statement for a complete version
of the provisions thereof.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission
pursuant to the Exchange Act (File No. 0-8590) are incorporated by
reference into this Prospectus and made a part hereof:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1993 (which incorporates by reference certain portions
of the Company's definitive Notice and Proxy Statement for the
Company's 1994 Annual Meeting of Stockholders).
2. The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1994.
3. The Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1994.
4. The Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1994.
5. All other documents filed by the Company with the Commission
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 in a document incorporated or deemed to be
incorporated by reference herein or in the accompanying Prospectus
Supplement or contained herein or in the accompanying Prospectus
Supplement shall be deemed to be supplemented, modified or
superseded for purposes of this Prospectus or such Prospectus
Supplement to the extent that a statement contained herein or in the
accompanying Prospectus Supplement or in any other subsequently
filed document that also is or is deemed to be incorporated by
reference herein or in the accompanying Prospectus Supplement
supplements, modifies or supersedes such statement. Any such
statement so supplemented, modified or superseded shall not be deemed,
except as so supplemented, modified or superseded, to constitute a part
of this Prospectus or any Prospectus Supplement.
Copies of documents incorporated by reference herein, except for
the exhibits to such documents (unless the exhibits are specifically
incorporated by reference in such documents), are available from the
Company upon request without charge. Requests should be directed to
Equitable of Iowa Companies, 604 Locust Street, P.O. Box 1635, Des
Moines, Iowa 50306-1635, Attention: Secretary, telephone: (515)
245-6799.
THE COMPANY
Equitable of Iowa Companies, a Des Moines, Iowa based insurance
holding company, is a provider of individual annuity and life
insurance products, targeting middle-income individuals and small
businesses throughout the United States. Through its primary
insurance subsidiaries, Equitable Life Insurance Company of Iowa
("Equitable Life") and USG Annuity & Life Company ("USG"), the
Company offers individual annuity and life insurance products in 49
states and the District of Columbia. Equitable Life was founded in
1867 and is the oldest life insurance company west of the Mississippi
River. The Company began actively marketing annuity products in
1988, principally through USG. The Company markets its products
through a variable cost distribution network of licensed independent
brokerage agents, career agents and financial institutions, such as
banks and thrifts.
The Company's strategy is to:
* offer a diversified portfolio of annuity and life insurance
products designed to appeal to a broad range of customers in
the fast-growing retirement savings market segment;
* expand its existing base of agents;
* provide superior, cost-effective service to its policyholders
and agents, brokers and other producers;
* maintain its financial strength;
* issue competitive products that also provide the Company with
protection from early policy termination; and
* maintain high quality investments providing cash flows
consistent with the characteristics of the Company's policy
liabilities.
Equitable competes with other life insurance companies and providers
of retirement savings products. The Company designs its products to
offer attractive, competitive benefits to policyholders while preserving
the Company's flexibility to respond to changing interest rate
environments and providing the Company with protection from early
withdrawal or surrender of policies. Equitable's products generally
provide for a current interest guarantee of only one year. In addition,
products sold by the Company typically include surrender or withdrawal
charges, which generally decline over time and apply only during a
stated period. Equitable also offers annuity products with a market
value adjustment feature, in which a "market value adjustment" is
applied to adjust the applicable surrender charge during the surrender
charge period. The withdrawal rates of policyholder funds may be
affected to some degree, however, by changes in interest rates.
The Company requires that each of its products be priced to earn an
adequate margin between the return earned by the Company on its
investments and the interest credited to policyholders. Funds are
predominantly invested in investment grade fixed income securities and
the Company endeavors to match the cash flows of these assets to its
liabilities.
As a holding company, the Company's principal source of liquidity to
meet its obligations (including interest on and principal of the Debt
Securities) is distributions from its subsidiaries. The rights of the
Company to participate in any distribution of earnings or assets of any
of its subsidiaries (and thus the ability of the Company to use earnings
and assets of its subsidiaries to pay principal and interest on the Debt
Securities) are subject to state insurance regulatory and other
statutory restrictions, including limitations on the amount of dividends
that may be paid by the Company's insurance subsidiaries in any year
without the prior approval of the state regulatory authorities, as more
fully described in the notes to the Company's financial statements. Any
such distributions are also subject to the prior claims of creditors of
that subsidiary, including claims for policy benefits, debt obligations
and other liabilities incurred in the ordinary course of business,
except to the extent that the claims, if any, of the Company as a
creditor of such subsidiary may be recognized.
The mailing address of the principal executive office of the Company
is 604 Locust Street, P.O. Box 1635, Des Moines, Iowa 50306-1635 and
the telephone number is 515-245-6911.
USE OF PROCEEDS
Unless otherwise indicated in the accompanying Prospectus Supplement
with respect to the proceeds from the sale of the Offered Securities,
the Company intends to use the net proceeds to be received by the
Company from the sale of Debt Securities offered by this Prospectus
for general corporate purposes, including repayment of short-term
indebtedness, investments in subsidiaries, working capital needs or
other corporate purposes. Until the net proceeds are used for these
purposes, the Company may deposit them in interest-bearing accounts or
invest them in short-term marketable securities. The specific allo-
cations, if any, of the proceeds of a particular series or issuance of
Debt Securities will be described in the Prospectus Supplement relating
thereto.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the historical ratios of earnings to
fixed charges for the Company and its subsidiaries on a consolidated
basis for each of the years ended December 31, 1989 through 1993 and for
the nine months ended September 30, 1994. The ratio of consolidated
earnings to fixed charges is calculated by dividing consolidated
earnings (income from continuing operations before income taxes plus
fixed charges) by fixed charges (interest expense on debt and a portion
of rental expense).
<TABLE>
<CAPTION>
(Unaudited)
Nine Months
Ended Sept. 30, Year Ended December 31,
_______________ ______________________________________
<S> <C> <C> <C> <C> <C> <C>
Ratio of Consolidated 1994 1993 1992 1991 1990 1989
____ ____ ____ ____ ____ ____
Earnings to Fixed Charges 14.5 12.3 8.0 4.9 4.2 5.5
</TABLE>
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets
forth certain general terms and provisions of the Debt Securities.
The particular terms of the Debt Securities offered by any Prospectus
Supplement and the extent, if any, to which such general provisions
may apply or do not apply to such Offered Securities, will be
described in the Prospectus Supplement relating to such Offered
Securities.
The Debt Securities may be issued in one or more series under an
indenture between the Company and a trustee, a copy of which has been
or will be included as an exhibit to or incorporated by reference in
the Registration Statement of which this Prospectus is a part.
Unless otherwise indicated in an accompanying Prospectus Supplement,
the Debt Securities will be issued under an Indenture dated as of
January 17, 1995 (as amended or supplemented from time to time, the
"Indenture") between the Company and The First National Bank of
Chicago, as Trustee (together with any successor thereto, the
"Trustee"). The following summaries of certain provisions of the
Indenture and the Debt Securities do not purport to be complete and
are subject to, and are qualified in their entirety by reference to,
all provisions of the Indenture, a copy of which has been filed as an
exhibit to the Registration Statement of which this Prospectus is a
part. Certain terms defined in the Indenture are capitalized in this
Prospectus. The parenthetical section references below are to the
Indenture.
General
The Indenture provides that the Debt Securities and other unsecured
debt securities of the Company may be issued thereunder, without
limitation as to the aggregate principal amount of Debt Securities
which may be issued thereunder, and that Debt Securities and other
unsecured debt securities of the Company may be issued thereunder
from time to time in one or more series, with different maturity
dates, interest rates and other terms, and may be denominated and
payable in United States dollars or in foreign currencies or units
based on or relating to foreign currencies, in each case as authorized
from time to time by the Company. Unless otherwise indicated in the
applicable Prospectus Supplement, the Indenture also permits the Company
to increase the principal amount of any series of Debt Securities
previously issued and to issue additional securities of such series
in such increased principal amount. (Section 2.3)
The Prospectus Supplement will set forth the following terms
relating to the Offered Securities, to the extent applicable thereto:
(1) the specific designation of the Offered Securities and authorized
denominations thereof; (2) any limit on the aggregate principal
amount of the Offered Securities; (3) the percentage of the principal
amount representing the price for which the Offered Securities will
be issued; (4) the date or dates, or method of determining the same,
on which the principal of the Offered Securities will be payable; (5)
the rate or rates per annum (which may be fixed or variable) at which
the Offered Securities will bear interest, if any, or the method by
which such rate or rates will be determined, the date or dates from
which any such interest will accrue or the method by which such date
or dates will be determined, and the date or dates on which any such
interest will be payable and (in the case of Offered Securities in
registered form) the Record Dates for any interest payable on the
Offered Securities or the method by which such dates will be
determined; (6) any index used to determine the amount of principal,
premium or interest payable on the Offered Securities; (7) any
subordination of the Offered Securities to other indebtedness of the
Company (including to the Securities of any other series); (8) any
mandatory or optional redemption, repayment or sinking fund or
analogous provisions, including the period or periods within or the
date upon which, the price or prices at which, the currency or units
based on relating to foreign currencies in which and the terms and
conditions upon which the Offered Securities may be redeemed or
purchased, in whole or in part, at the option of the Company, at the
option of the Holder thereof or otherwise; (9) whether the Offered
Securities will be issuable in registered form or bearer form or both,
and, if issuable in bearer form, the restrictions as to the offer, sale,
delivery, transfer and exchange of the Offered Securities in bearer
form or the payment of interest thereon and the terms of exchanges
between registered and bearer form; (10) whether the Offered
Securities will be issuable in whole or in part in the form of one or
more temporary or permanent Registered Global Securities and, if so,
the identity of the Depositary for such Registered Global Securities
and the terms and conditions, if any, upon which such Registered
Global Security or Securities may be exchanged in whole or in part
for other definitive securities; (11) each office or agency where the
principal of and premium and interest, if any, on the Offered
Securities will be payable, and each office or agency where the
Offered Securities may be presented for registration of transfer or
exchange and where notices may be served upon the Company; (12) if
other than in United States dollars, the foreign currency or the
units based on or relating to foreign currencies in which the Offered
Securities are denominated and/or in which the payment of the
principal of and premium and interest, if any, on the Offered
Securities will or may be payable; (13) any right of the Company to
require a Holder to accept, or of a Holder to elect to receive,
payment of the Offered Securities in a currency other than that in
which they are denominated or stated to be payable; (14) if other
than the stated principal amount thereof, the portion of the
principal amount of the Offered Securities payable upon declaration
of acceleration of the maturity of the Offered Securities and/or the
method by which such amount shall be determined; (15) any variation
to the provisions of the Indenture with respect to the satisfaction
and discharge of the Company's indebtedness and obligations, or
termination of certain of its covenants under the Indenture, with
respect to the Offered Securities by deposit of money or Government
Obligations; (16) any additions to or deletions from the Events of
Default or covenants of the Company contained in the
Indenture with respect to the Offered Securities; (17) any trustee
(other than The First National Bank of Chicago), depositary, currency
determination agent, authenticating or paying agent, transfer agent,
registrar or other agent with respect to the Offered Securities; and
(18) any other terms of the Offered Securities which shall not
adversely affect the interests of any Holders of any Debt Securities
then outstanding. (Section 2.3)
The Prospectus Supplement relating to the Offered Securities may set
forth information regarding certain United States federal income tax
consequences of the Offered Securities. Debt Securities may be
issued bearing no interest or interest at a rate below the prevailing
market rate at the time of issuance and may be offered and sold at a
discount below their stated principal amount. Certain United States
federal income tax consequences and other special considerations
applicable to any such discounted Debt Securities or to other Debt
Securities offered and sold at par which are treated as having been
issued at a discount for United States federal income tax purposes
will be described in the Prospectus Supplement relating thereto.
Certain United States federal income tax considerations applicable to
any Debt Securities denominated in foreign currencies or in units
based on or relating to foreign currencies will be described in the
Prospectus Supplement relating thereto.
Unless the Prospectus Supplement relating thereto specifies
otherwise, Debt Securities denominated in U.S. dollars will be issued
only in denominations of $1,000 or any integral multiple thereof.
(Section 2.7) The Prospectus Supplement relating to a series of Debt
Securities denominated in a foreign currency or currency unit will
specify the denominations thereof.
Unless otherwise indicated in the applicable Prospectus Supplement,
the Debt Securities will be issued only in fully registered form
without coupons. Debt Securities of a series may be issuable in
whole or in part in the form of one or more Registered Global
Securities, as described below under "Registered Global Securities."
One or more Registered Global Securities will be issued in a
denomination or aggregate denominations equal to the aggregate
principal amount of Outstanding Securities of the series to be
represented by such Registered Global Security or Securities.
(Section 2.4)
The Debt Securities will be unsecured and unless otherwise described
in the Prospectus Supplement relating thereto will rank on a parity
with all other unsecured and unsubordinated indebtedness of the
Company. (Section 2.3) Except as described below under
"Description of Debt Securities -- Covenants -- Limitation on Liens
on Stock of Restricted Subsidiaries", there is no restriction in the
Indenture against the Company or subsidiaries of the Company
incurring secured or unsecured indebtedness or issuing secured or
unsecured securities. The Company has from time to time entered
into, and will in the future enter into, credit agreements to fund
its operations. Such credit agreements may be secured by the assets
of the Company, secured by the assets of the Company's subsidiaries
or guaranteed by the Company's subsidiaries. To the extent that
such credit agreements are so secured or guaranteed, the lenders
under such credit agreements will have priority over the Holders of
the Debt Securities with respect to the assets of the Company or its
subsidiaries.
As a holding company, the Company's principal source of liquidity to
pay its obligations (including the Debt Securities) is distributions
from its subsidiaries. The rights of the Company to participate in
any distribution of earnings or assets of any of its subsidiaries
(and thus the ability of the Company to use earnings and assets of
its subsidiaries to pay principal and interest on the Debt
Securities) are subject to state insurance regulatory and other
statutory restrictions, including limitations on the amount of
dividends that may be paid by the Company's insurance subsidiaries in
any year without the prior approval of the state regulatory authorities,
as more fully described in the notes to the Company's financial
statements. Any such distributions are also subject to the prior
claims of creditors of that subsidiary, including claims for policy
benefits, debt obligations and other liabilities incurred in the
ordinary course of business, except to the extent that the claims,
if any, of the Company as a creditor of such subsidiary may be
recognized.
Except as described below under "Description of Debt Securities --
Covenants", the Indenture does not contain covenants or other
provisions designed to afford Holders of Debt Securities protection
in the event of a change in capital structure, reorganization,
dividend or distribution in respect of Capital Stock, change in
credit rating, incurrence of indebtedness or similar obligations
that would have priority over or be on a parity with the Debt
Securities or other similar occurrence. Holders of the Debt
Securities will not have the right to accelerate the Debt Securities
in the event of material adverse changes in the financial condition
or results of operations of the Company or of its subsidiaries or
other events which may adversely affect the creditworthiness of the
Company. Therefore, the financial condition and results of
operations of the Company, and not the covenants and other
provisions of the Indenture, should be the primary factor in an
evaluation of whether the Company will be able to satisfy its
obligations under the Debt Securities.
Exchange and Transfer
At the option of the Holder upon request confirmed in writing, and
subject to the terms of the Indenture, Debt Securities of any series
(other than Registered Global Securities) will be exchangeable into
an equal aggregate principal amount of Debt Securities of the same
series (with the same interest rate, maturity date and other terms) of
different authorized denominations except that Debt Securities of
any series issued in registered form may not be exchanged for Debt
Securities of the same series issued in bearer form unless the
applicable Prospectus Supplement shall indicate to the contrary.
(Section 2.8)
Unless otherwise indicated in the applicable Prospectus
Supplement, the Debt Securities may be presented for exchange, and
registered Debt Securities (other than a Registered Global Security)
may be presented for registration of transfer, at the offices or
agency of the Security Registrar in New York, New York without
service charge, but upon pay ment of any taxes or other governmental
charges due in connection therewith, subject to any applicable
limitations or conditions contained in the Indenture. Such transfer
or exchange will be effected by the Security Registrar upon its
being satisfied with the documents of title and the identity of the
person making the request. The Company has appointed the Trustee as
Security Registrar. Debt Securities in bearer form and the related
coupons, if any, will be transferable by delivery. (Sections 2.8
and 3.2)
Payment
Unless otherwise indicated in the applicable Prospectus
Supplement, payment of principal of and premium, if any, on the Debt
Securities will be made at the office of the Trustee in New York,
New York. Unless otherwise indicated in the applicable Prospectus
Supplement, payment of any installment of interest, if any, on a
Debt Security will be made at the office or agency of the Trustee in
New York, New York, except that, at the option of the Company,
payment of any interest on Debt Securities in registered form may be
made (i) by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register or
(ii) by wire transfer to an account maintained by the Person entitled
thereto as specified in the Security Register. (Sections 3.1 and 3.2)
Unless otherwise indicated in the applicable Prospectus Supplement,
payment of any interest due on Debt Securities in registered form will
be made to the Persons in whose name such Debt Securities are
registered at the close of business on the Record Date for such
interest payments; provided, however, that any interest that is
payable at maturity will be payable to the person to whom principal
payable at maturity shall be payable. (Section 2.7)
Principal and premium and interest, if any, shall be considered
paid on the due date if on such date the Trustee or the paying
agent holds money sufficient to pay all such amounts then due and
the Trustee or the paying agent, as the case may be, is not
prohibited under the terms of the Indenture from paying such money
to the Holders of the Debt Securities on that date. (Section 3.1)
Registered Global Securities
The registered Debt Securities of a particular series may be issued
in whole or in part in the form of one or more Registered Global
Securities which will be deposited with or on behalf of a depositary
located in the United States (the "Depositary"), which will be
identified in the Prospectus Supplement relating to such series, and
registered in the name of the Depositary or its nominee. (Section
2.4) Unless and until exchanged, in whole or in part, for other
Debt Securities of such series in definitive form, a Registered
Global Security may not be transferred except as a whole by the
Depositary for such Registered Global Security to a nominee of such
Depositary, 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 of such Depositary or a nominee of such
successor. (Section 2.8)
The specific terms of the depositary arrangement with respect to
any portion of a particular series of Debt Securities to be
represented by a Registered Global Security will be described in
the Prospectus Supplement relating to such series. The Company
anticipates that the following provisions will apply to all
depositary arrangements.
Upon the issuance of a Registered Global Security, the Depositary
therefor or its nominee will credit, on its book-entry registration
and transfer system, the respective principal amounts of the Debt
Securities represented by such Registered Global Security to the
accounts of such persons having accounts with such Depositary
("participants") as shall be designated by the dealers, 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
Registered Global Security will be limited to participants or
persons that may hold interests through participants; however, the
Company will have no obligations to participants or any persons that
hold interests through participants. Ownership of beneficial
interests in a Registered Global Security will be shown on, and the
transfer of such ownership will be effected only through, records
maintained by the Depositary therefor or its nominee (with respect
to interests of participants) or by participants or persons that
hold through participants (with respect to interests of persons
other than participants). The laws of some states require certain
purchasers of securities to take physical delivery thereof in
definitive form. The depositary arrangements described above and
such laws may impair the ability to own or transfer beneficial
interests in a Registered Global Security.
So long as the Depositary for a Registered Global Security or its
nominee is the registered owner thereof, such Depositary or such
nominee, as the case may be, will be considered the sole owner or
Holder of the Debt Securities represented by such Registered Global
Security for all purposes under the Indenture or the Registered
Global Security. Except as provided below, owners of beneficial
interests in a Registered Global Security will not be entitled to
have Debt Securities of the series represented by such Registered Global
Security registered in their names, will not receive or be entitled
to receive physical delivery of Debt Securities of such series in
definitive form and will not be considered the owners or Holders
thereof under the Indenture or under such Registered Global
Security. (Section 7.3)
Principal of and premium and interest payments, if any, on Debt
Securities represented by a Registered Global Security registered in
the name of a Depositary or its nominee will be made to such
Depositary or nominee, as the case may be, as the registered owner
of such Registered Global Security. Neither the Company, the
Trustee nor any paying agent or Security Registrar for Debt
Securities of the series represented by such Registered Global
Security will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial
interests in such Registered Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial
interests. (Section 7.3)
The Company expects that the Depositary for a Registered Global
Security or its nominee, upon receipt of any payment of principal or
premium or interest, if any, in respect thereof, will immediately
credit participants' accounts with payments in amounts proportionate
to their respective beneficial interests in the principal amounts of
such Registered Global Security as shown on the records of such
Depositary. The Company also expects that payments by participants
to owners of beneficial interests in such Registered Global Security
held through such participants will be governed by standing customer
instructions and customary practices, as is now the case with
securities held for the accounts of customers registered in "street
name", and will be the responsibility of such participants.
If the Depositary for a Registered Global Security representing Debt
Securities or a particular series of Debt Securities is at any time
unwilling or unable to continue as Depositary or ceases to be a
clearing agency registered under the Exchange Act and any other
applicable statute or regulation and a successor Depositary is not
appointed by the Company within ninety (90) days, the Company will
issue Debt Securities of such series in definitive form in exchange
for all of the Registered Global Securities representing Debt
Securities of such series. In addition, the Company may at any time
and in its sole discretion determine to no longer have the Debt
Securities of a particular series represented by one or more
Registered Global Securities and, in such event, will issue Debt
Securities of such series in definitive form in exchange for all of
the Registered Global Securities representing Debt Securities of
such series. (Section 2.8)
Within seven days after the occurrence of an Event of Default
concerning nonpayment of interest, principal or any sinking fund or
analogous payment with respect to any series of Debt Securities that
is, in whole or in part, represented by a Registered Global
Security, the Company will execute, and the Trustee will
authenticate and deliver, Debt Securities of such series in
definitive registered form, in any authorized denominations and in
an aggregate principal amount equal to the principal amount of the
Registered Global Security in exchange for such Registered Global
Security. (Section 2.8)
Debt Securities in definitive registered form issued in exchange
for a Registered Global Security shall be registered in such
names and in such authorized denominations as the Depositary for
such Registered Global Security, pursuant to instructions from the
participants or persons that hold interests through such participants,
shall instruct the Trustee. The Trustee will deliver Debt Securities in
definitive registered form to or as directed by the persons in whose
names such Debt Securities are so registered. (Section 2.8)
Covenants
General. Unless otherwise indicated in the applicable Prospectus
Supplement, the Indenture requires the Company to covenant to the
following with respect to each series of Debt Securities: (i) to
duly and punctually pay the principal of and premium and interest,
if any, on such series of Debt Securities (together with any
additional amounts payable pursuant to the terms thereof) and comply
with all other terms, agreements and conditions contained therein or
made in the Indenture for the benefit of the Debt Securities of such
series; (ii) to maintain an office or agency where Debt Securities
of such series may be presented, surrendered for payment,
transferred or exchanged and where notices to the Company may be
served; (iii) if the Company shall act as its own paying agent for
any series of Debt Securities, to segregate and hold in trust for
the benefit of the persons entitled thereto a sum sufficient to pay
the principal of and premium or interest, if any, so becoming due;
(iv) to appoint a successor trustee whenever necessary to avoid or
fill a vacancy in the office of trustee, and (v) to preserve its
corporate existence (Article 3). The Indenture also requires the
Company to deliver to the Trustee, within 120 days after the end of
each fiscal year, a written statement as to whether, to the best
knowledge of the officer signing the statement, the Company is in
compliance with the terms of the Indenture and, if not, the nature
and status of such noncompliance. (Section 4.3)
Limitation on Liens on Stock of Restricted Subsidiaries. The
Company will not, nor will it permit any Restricted Subsidiary to,
issue, assume or guarantee any indebtedness for borrowed money
(hereinafter referred to as "Debt") secured by a security interest,
pledge, lien or other encumbrance upon any shares of Capital Stock
of any Restricted Subsidiary without effectively providing that the
Debt Securities (together with, if the Company shall so determine,
any other indebtedness of or guarantee by the Company or any
Restricted Subsidiary ranking senior to or equally with the Debt
Securities and then existing or thereafter created) shall be secured
equally and ratably with such Debt. (Section 3.6).
For purposes of the Indenture, "Restricted Subsidiary" means each of
Equitable Life and USG, in each case, so long as it remains a
subsidiary of the Company, as well as any subsidiary of the Company
that is a successor to all or a principal part of the business of
any such subsidiary and "Capital Stock" means any and all shares,
interests, rights to purchase, warrants, options, participations or
other equivalents of or interests in (however designated) corporate
stock. (Section 1.1). The Restricted Subsidiaries accounted for
substantially all of the consolidated revenues of the Company during
the year ended December 31, 1993 and the consolidated assets of the
Company at December 31, 1993.
Limitation on Issuance or Disposition of Stock of Restricted Sub-
sidiaries. The Company will not, nor will it permit any Restricted
Subsidiary to, issue, sell, assign, transfer or otherwise dispose
of, directly or indirectly, any Capital Stock (other than nonvoting
preferred stock) of any Restricted Subsidiary, except for (i) the
purpose of qualifying directors; (ii) sales or other dispositions to
the Company or one or more Restricted Subsidiaries; (iii) the
disposition of all or any part of the Capital Stock of any
Restricted Subsidiary for consideration which is at least equal to
the fair value of such Capital Stock as determined by the Company's
Board of Directors (acting in good faith); or (iv) an issuance, sale,
assignment, transfer or other disposition required to comply with an
order of a court or regulatory authority of competent jurisdiction,
other than an order issued at the request of the Company or any Restricted
Subsidiary. (Section 3.7).
Consolidation, Merger and Transfer of Assets. The Company has
agreed that it will not consolidate or merge with or into, or
transfer, sell, convey or lease its properties or assets as, or
substantially as, an entirety unless (i) either the Company is the
continuing entity or the successor (if other than the Company) is a
domestic corporation or other domestic entity which expressly
assumes the Company's obligations on the Debt Securities and under
the Indenture, (ii) immediately after giving effect to such
transaction no Event of Default, and no event that, after notice or
lapse of time, or both, would become an Event of Default, shall have
occurred and be continuing, and (iii) the Company delivers to the
Trustee an officer's certificate and opinion of counsel stating that
such consolidation, merger, transfer, sale, conveyance or lease
complies with the Indenture. (Article 9)
Events of Default
The occurrence of any of the following events with respect to the
Debt Securities of any series will, unless otherwise specified in
the applicable Prospectus Supplement, constitute an "Event of
Default" with respect to the Debt Securities of such series: (a)
default for thirty (30) days in the payment of any installment of
interest on any of the Debt Securities of such series; (b) default
in the payment of any of the principal of or the premium, if any, on
any of the Debt Securities of such series when due, whether at
maturity, upon redemption, by declaration of acceleration or
otherwise; (c) default in the deposit when due of any sinking fund
payment or analogous obligation in respect of any of the Debt
Securities of such series; (d) default for sixty (60) days by the
Company in the observance or performance of any other covenant or
agreement contained in the Debt Securities of such series or the
Indenture (other than a covenant or agreement default which is
specifically designated as having a different time period) for the
benefit of the Debt Securities of such series after written notice
thereof as provided in the Indenture; (e) (i) an event of default
occurs under any instrument (including the Indenture) under which
there is at the time outstanding, or by which there may be secured
or evidenced, any indebtedness of the Company or any of its Restricted
Subsidiaries for money borrowed by the Company or any of its Restricted
Subsidiaries (other than non-recourse indebtedness) which results in
acceleration or nonpayment at maturity (after giving effect to any
applicable grace period) of such indebted ness in an aggregate
amount exceeding $15,000,000; or any such indebtedness exceeding
$15,000,000 shall otherwise be declared to be due and payable, or
required to be prepaid (other than by a regularly scheduled
prepayment or exercise of an optional prepayment right), prior to
the stated maturity thereof; or any failure by the Company or any
Restricted Subsidiary to make any payment under a guarantee in
respect of any indebtedness (except up to $26,311,000 aggregate
principal amount of 8.70% Guaranteed Notes issued by Walnut Mall
Limited Partnership, due August 19, 1996 and any accrued interest or
premium with respect thereto, which indebtedness is more fully
described in the notes to the Company's financial statements), in
each case in an amount of at least $15,000,000, on the date such
payment is due (or within any grace period specified in the
agreement or other instrument governing such indebtedness); in which
case the Company shall immediately give notice to the Trustee of
such acceleration or non-payment, and (ii) there shall have been a
failure to cure such default or to pay or discharge such defaulted
indebtedness within ten (10) days after written notice thereof as
provided in the Indenture; (f) any final non-appealable judgment
or order for the payment of money in excess of $15,000,000 is
rendered against the Company or any Restricted Subsidiary, such
judgment or order is not satisfied by payment or bonded and either
enforcement proceedings have been commenced by the judgment creditor
or there has been a period of 30 consecutive days during which a stay
of enforcement of such judgment or order, by reason of a pending appeal
or otherwise, shall not have been in effect; provided, however, that a
judgment or order fully covered by insurance (or a judgment or order for
the payment of money covered by insurance to the extent of all payments
in excess of $15,000,000), which coverage has not been disputed by the
insurer, shall not be considered a default or an Event of Default;
or (g) certain events of bankruptcy, insolvency or reorganization
relating to the Company. (Section 5.1) Different or additional
Events of Default may be prescribed for the benefit of the Holders
of a particular series of Debt Securities and will be described in
the Prospectus Supplement relating thereto. (Sections 2.3 and 5.1)
No Event of Default with respect to a particular series of Debt
Securities issued under the Indenture will necessarily constitute an
Event of Default with respect to any other series of Debt Securities
issued thereunder.
If an Event of Default shall have occurred and be continuing with
respect to any series of the Debt Securities unless the principal of
all of the Debt Securities of such series shall have already become
due and payable, either the Trustee or the Holders of not less than
25% in aggregate principal amount of the Debt Securities of such
series then Outstanding may declare the principal of all Debt
Securities of such series then Outstanding and the interest, if any,
accrued thereon to be due and payable immediately. If an Event of
Default due to certain events of bankruptcy, insolvency or reorga-
nization of the Company shall have occurred and be continuing, the
principal and interest on all the Debt Securities then Outstanding
shall thereby become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holders of
Debt Securities. Upon certain conditions, any such declaration of
acceleration with respect to Debt Securities of any series may be
rescinded and annulled if all Events of Default, other than the
nonpayment of accelerated principal and premium, if any, with respect
to the Debt Securities of such series shall have been cured, waived
or otherwise remedied as provided in the Indenture by the Holders of
a majority in aggregate principal amount of the Debt Securities of
such series then Outstanding. Reference is made to the Prospectus
Supplement relating to any series of Original Issue Discount
Securities for the particular provisions relating to the acceleration
of a portion of the principal thereof upon the occurrence and
continuance of an Event of Default with respect thereto. (Section
5.1)
Holders of Debt Securities may not enforce the Indenture or the
Debt Securities except as provided in the Indenture. The Trustee may
require indemnity satisfactory to it before it enforces the Indenture
or the Debt Securities. (Sections 5.6 and 6.2) Subject to such pro
visions for indemnity and certain other limitations contained in the
Indenture, the Holders of a majority in the aggregate principal
amount of the Debt Securities of any series then Outstanding will
have the right to direct the Trustee in the conduct of any proceeding
for any remedy or the exercise of any trust or power with respect to
such series, except that the Trustee may decline to follow such
directions if it in good faith determines that the actions or
proceedings so directed would unduly prejudice the rights of Holders
of Securities of other affected series not joining in the giving of
such directions. (Section 5.9) Holders and beneficial owners of the
Debt Securities have no recourse under the Indenture, any Debt
Security or the indebtedness evidenced thereby against any
incorporator, officer, director, employee, stockholder or partner, as
such, of the Company. (Section 11.1)
The Indenture provides that the Trustee may withhold notice to the
Holders of the Debt Securities of any series of any continuing
default affecting such series (except a default in payment) if it
considers such withholding to be in the interests of the Holders of
the Debt Securities of such series. (Section 5.11)
Modification and Waiver
The Indenture permits the Company and the Trustee to enter into
supplemental indentures without the consent of the Holders of the
Debt Securities to: (a) pledge collateral as security for the Debt
Securities of one or more series, (b) add guarantees with respect to
the Debt Securities of one or more series, (c) evidence the
assumption by a successor entity of the obligations of the Company
under the Indenture and the Debt Securities then Outstanding, (d) add
covenants for the protection of the Holders of the Debt Securities of
one or more series, including any different grace periods or remedies
for breach thereof otherwise than as provided in the Indenture, (e)
cure any ambiguity or correct or supplement any provision that may be
defective or inconsistent with any other provisions contained in the
Indenture or make or add such other provisions as the Company may
deem necessary or desirable, provided that no such action adversely
affects the interests of the Debt Securities of any series, (f)
establish the form and terms of the Debt Securities of any series,
(g) evidence the acceptance of appointment by a successor Trustee
with respect to the Debt Securities of one or more series and certain
related matters, (h) subject to compliance with certain requirements
of the Indenture, provide for uncertificated Debt Securities in
addition to or in place of certificated Debt Securities, (i) comply
with any requirements of the Securities and Exchange Commission in
connection with qualifying the Indenture under the Trust Indenture
Act of 1939, as amended, or to comply with any amendments thereto,
(j) comply with any requirements related to the listing of the Debt
Securities of any series for trading on a securities exchange or
through an interdealer quotation system; and (k) add to or change or
eliminate any provision of the Indenture if such change or elimination
is applicable only to Debt Securities of any series that are first
issued after the effective date thereof. (Section 8.1)
The Indenture also permits the Company and the Trustee, with the
consent of the Holders of not less than a majority in aggregate
principal amount of the Debt Securities of any series then
Outstanding and affected, to add any provisions to, or change in any
manner or eliminate any of the provisions of, the Indenture or modify
in any manner the rights of the Holders of the Debt Securities of any
such affected series; provided, however, that the Company and the
Trustee may not, without the consent of the Holder of each Debt
Security of any such series then Outstanding and affected thereby:
(a) extend the time of payment of the principal (or any installment
thereof) of, or premium on any Debt Securities, or reduce the amount
thereof, or reduce the rate, alter the method of computation of the
rate or extend the time of payment of interest thereon, reduce any
amount payable on the redemption thereof, reduce the amount of, or
postpone the date fixed for, any sinking fund payment or analogous
obligation, or change the currency or currency unit in which the
principal thereof or the premium or interest thereon is payable, or
reduce the amount payable on any Original Issue Discount Security
upon acceleration or provable in bankruptcy, or change the place of
payment specified for such Debt Securities, or alter certain
provisions of the Indenture relating to Debt Securities not
denominated in United States dollars, or impair the right to
institute suit for the enforcement of any payment on or with respect
to any Debt Securities when due or, if such Debt Security shall so
provide, any right of repayment at the option of the Holder thereof;
or (b) reduce the percentage in principal amount of the Debt
Securities of such series, the consent of the Holders of which is
required for any modification or amendment of the Indenture or for
any waiver provided for in the Indenture; or (c) modify any of the
foregoing provisions, except to increase any such percentage or to
provide that certain other provisions of the Indenture cannot be
modified or waived without the consent of the Holders of each
Outstanding Debt Security so affected. (Section 8.2)
The Holders of a majority in aggregate principal amount of the Debt
Securities of any series then Outstanding may on behalf of the
Holders of all Debt Securities of that series waive, insofar as that
series is concerned, compliance by the Company with any covenant or
provision of the Indenture applicable to that series, except for any
covenant or provision which cannot be modified or amended without the
consent of the Holder of each Security of such affected series.
(Section 11.13) Prior to the declaration of acceleration of the
maturity of Debt Securities of any series then Outstanding, the
Holders of a majority in aggregate principal amount of the Debt
Securities of such series then Outstanding with respect to which a
default or an Event of Default shall have occurred and be continuing
may on behalf of the Holders of all Debt Securities of such series
waive any past default or Event of Default and its consequences,
except a default or an Event of Default in respect of a covenant or
provision of the Indenture or of any Debt Securities of such series
which cannot be modified or amended without the consent of each of
the Holders of the Debt Securities of such series. (Section 5.10)
Defeasance and Discharge
Unless otherwise indicated in the applicable Prospectus Supplement,
the Company, at its option, (a) will be discharged from any and all
obligations in respect of all outstanding Debt Securities of any
particular series (defeasance and discharge), or (b) need not comply
with certain covenants of the Indenture applicable to such series,
and certain Events of Default will no longer be applicable to such
series, all which shall be specified in the applicable Prospectus
Supplement (covenant defeasance), in each case if the Company irrevocably
deposits in trust with the Trustee for the benefit of the Holders of
the Debt Securities of such series funds and/or securities that are
direct full faith and credit obligations of, or obligations of a
Person controlled or supervised by and acting as an agency or instru
mentality of and the payment of which is unconditionally guaranteed
by the full faith and credit of, the government which issued the
currency in which the Debt Securities of such series are payable or
certain depository receipts therefor ("Government Obligations")
which, through the payment of the principal thereof and the interest
thereon in accordance with their terms, will provide funds in an
amount sufficient to pay all the principal of and premium and
interest, if any, on the Debt Securities of such series (including
any mandatory sinking fund or analogous payments) as they shall
become due from time to time in accordance with the terms thereof.
To effect a defeasance and discharge with respect to Securities of a
series that will not be fully paid (upon maturity or redemption)
within one year or to effect a covenant defeasance, the Company is
required, among other things, to deliver to the Trustee an opinion of
counsel to the effect that the Holders of the Debt Securities of such
series would not recognize income, gain or loss for United States
federal income tax purposes as a result of such defeasance and
discharge or such covenant defeasance, as the case may be, and that
such Holders will be subject to United States federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such defeasance had not occurred, and in the
case of such a defeasance and discharge such opinion shall
additionally state that either (A) there has been a change in the
applicable United States federal income tax law to the foregoing
effect or (B) the Company has received a private letter ruling from
the Internal Revenue Service or there has been published a revenue
ruling to the foregoing effect. A defeasance and discharge with
respect to Securities of a series that will not be fully paid
(upon maturity or redemption) within one year or a covenant
defeasance will not be made with respect to any Debt Securities of a
series then listed on any national securities exchange if such
defeasance and discharge or covenant defeasance would cause Debt
Securities of such series to be delisted. Upon defeasance and
discharge, the Indenture will cease to be of further effect with
respect to the Debt Securities of such series and the Holders of such
Debt Securities shall look only to the deposited funds or Government
Obligations for payment. Upon covenant defeasance, however, the
Company will not be relieved of its obligation to pay when due
principal of and premium and interest, if any, on the Debt Securities
of such series if not otherwise paid from such deposited funds or
Government Obligations. Notwithstanding the foregoing, certain
obligations and rights under the Indenture with respect to the
obligations of the Trustee, compensation, reimbursement and
indemnification of the Trustee, rights of the Holders of Securities
of a series to receive payments from the funds and Government
Obligations deposited with the Trustee for such series, registration
of transfer and exchange of the Debt Securities of such series,
replacement of mutilated, defaced, destroyed, lost or stolen Debt
Securities and certain other administrative provisions will survive
defeasance and discharge. (Section 10.1)
In the event the Company exercises its option to effect a covenant
defeasance with respect to any series of Debt Securities and the Debt
Securities of such series are declared due and payable because of the
occurrence of any Event of Default still applicable to such series,
the amount of money and Government Obligations on deposit with the
Trustee may not be sufficient to pay amounts due on the Debt
Securities of such series at the time of the acceleration resulting
from such Event of Default. However, the Company shall remain liable
for such payments. (Section 10.1)
If the Trustee or paying agent is unable to apply any funds or
Government Obligations deposited with respect to a series of Debt
Securities in accordance with the foregoing provisions 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, the Company's obligations under the
Indenture and the Debt Securities of such series shall be revived and
reinstated as though no deposit had occurred pursuant to such
provisions until such time as the Trustee or paying agent is
permitted to apply all such funds or Government Obligations in
accordance therewith; provided, however, that, if the Company has
made any payment of premium or interest on or principal of any Debt
Securities of such series because of the reinstatement of its obli-
gations, the Company shall be entitled, at its election, (a) to
receive from the Trustee or paying agent, as applicable, that portion
of such money or Government Obligations equal to the amount of such
payment or (b) to be subrogated to the rights of the Holders of the
Debt Securities of such series to receive such payment from the funds
or Government Obligations held by the Trustee or paying agent.
(Section 10.6)
Governing Law
The Indenture and the Debt Securities issued thereunder will be
governed by the laws of the State of New York. (Section 11.8)
Concerning the Trustee
The First National Bank of Chicago, the Trustee under the Indenture,
is one of a number of banks with which the Company and its
subsidiaries has and in the future may have banking relationships in
the ordinary course of business, including, in certain cases, credit
facilities.
PLAN OF DISTRIBUTION
The Company may offer and sell Debt Securities in any of the
following ways: (i) directly to purchasers (through a specific
bidding or auction process or otherwise), (ii) through agents, (iii)
through underwriters, (iv) through dealers or (v) through a
combination of any such methods. The Prospectus Supplement with
respect to an offering of Offered Securities will set forth the terms
of such offering, including, to the extent applicable, the name or
names of any underwriter or underwriters (and any managing
underwriter or underwriters), the purchase price of the Offered
Securities and the proceeds to the Company from such sale, any
underwriting discounts and other items constituting underwriters'
compensation, any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers and any
securities exchanges or interdealer quotation system on which such
Offered Securities are expected to be listed.
Debt Securities may be offered and sold, and offers to purchase
such securities may be solicited, by agents designated by the Company
from time to time. Any such agent involved in the offer or sale of
the Debt Securities in respect of which this Prospectus is delivered
will be named, and the terms of such agency (including any
commissions payable by the Company to such agent) will be set forth,
in the applicable Prospectus Supplement. Unless otherwise indicated
in the Prospectus Supplement, any such agent will be acting on a best
efforts basis for the period of its appointment.
If an underwriter or underwriters are utilized in the sale of Debt
Securities, the Company will execute an underwriting agreement with
such underwriter or underwriters at the time an agreement for such
sale is reached and the names of the managing underwriter or managing
underwriters, as well as any other underwriters, and the terms of the
transaction, including compensation of the underwriters and dealers,
if any, will be set forth in the Prospectus Supplement, which will be
used by the underwriters to make resales of the Offered Securities in
respect of which such Prospectus Supplement is delivered. If under-
writers are used in the sale, such underwriters will acquire Debt
Securities for their own account and may resell such Debt Securities
from time to time in one or more transactions, including negotiated
transactions, at fixed public offering prices or at varying prices
determined at the time of sale. Debt Securities may be offered to
the public either through underwriting syndicates represented by
managing underwriters, or directly by underwriters without a
syndicate. Only underwriters named in the Prospectus Supplement are
deemed to be underwriters in connection with the Debt Securities
offered thereby. If any underwriters are utilized in the sale of the
Debt Securities, unless otherwise set forth in the Prospectus
Supplement relating thereto the underwriting agreement will provide
that the obligations of the underwriters are subject to certain
conditions precedent and that the underwriters with respect to a sale
of Debt Securities will be obligated to purchase all such Debt
Securities, if any are purchased. Any initial public offering price
and any discounts or concessions allowed or reallowed or paid to
dealers may be changed from time to time.
If a dealer is utilized in the sale of the Debt Securities, the
Company will sell such Debt Securities to the dealer, as principal.
The dealer may then resell such Debt Securities to the public at
varying prices to be determined by such dealer at the time of resale.
The name of the dealer and the terms of the transaction will be set
forth in the Prospectus Supplement relating thereto.
Agents, underwriters and dealers may be entitled under agreements
that may be entered into with the Company to indemnification by the
Company against certain liabilities, including liabilities under the
Securities Act of 1933, as amended, or to contribution with respect
to payments which the agents, underwriters or dealers may be required
to make in respect thereof. Agents, underwriters and dealers may be
customers of, engage in transactions with, or perform services for
the Company and affiliates of the Company. Any agents, dealers or
underwriters participating in the offering of Debt Securities may be
deemed "underwriters" within the meaning of the Securities Act of
1933, as amended, of the Debt Securities so offered.
Offers to purchase Debt Securities may be solicited directly by the
Company and sales thereof may be made by the Company directly to
institutional investors or others. The terms of any such sales,
including the terms of any bidding or auction process, if utilized,
will be described in the Prospectus Supplement relating thereto.
Agents and underwriters may from time to time purchase and sell
Debt Securities in the secondary market or may make a market in the
Debt Securities, but are not obligated to do so, and there can be no
assurance that there will be a secondary market for the Debt
Securities or liquidity in the secondary market if one develops.
If so indicated in the applicable Prospectus Supplement, the Company
will authorize agents, underwriters or dealers to solicit offers by
certain institutions to purchase Debt Securities from the Company at
the public offering price set forth in the applicable Prospectus
Supplement pursuant to Delayed Delivery Contracts ("Contracts")
providing for payment and delivery on a specified date in the future.
A commission indicated in the applicable Prospectus Supplement will
be paid to underwriters, dealers or agents soliciting purchases of Debt
Securities pursuant to Contracts accepted by the Company. The Con-
tracts will be subject to the conditions set forth in the applicable
Prospectus Supplement.
As one of the means of direct issuances of Debt Securities, the
Company may utilize the services of an entity through which it may
conduct an electronic "dutch auction" or similar offering of the Debt
Securities among potential purchasers who are eligible to participate
in the auction or offering of such Debt Securities, if so described
in the applicable Prospectus Supplement.
The anticipated place and time of delivery for the Debt Securities
in respect of which this Prospectus is delivered will be set forth in
the applicable Prospectus Supplement.
LEGAL MATTERS
The validity of the Debt Securities offered hereby will be passed
upon for the Company by Nyemaster, Goode, McLaughlin, Voigts, West,
Hansell & O'Brien, P.C., 1900 Hub Tower, Des Moines, Iowa 50309.
Attorneys in such law firm hold shares of Common Stock without par
value of the Company. Certain legal matters in connection with the
Debt Securities will be passed upon for the underwriter(s), dealer(s)
or agent(s) by Simpson Thacher & Bartlett (a partnership which
includes professional corporations), 421 Lexington Avenue, New York,
New York 10017. As to certain matters of Iowa law, Simpson Thacher
& Bartlett may rely upon the opinions of Nyemaster, Goode,
McLaughlin, Voigts, West, Hansell & O'Brien, P.C.
EXPERTS
The consolidated financial statements and schedules of the Company
appearing in the Company's Annual Report on Form 10-K for the year
ended December 31, 1993, have been audited by Ernst & Young LLP,
independent auditors, as set forth in their report thereon included
therein and incorporated herein by reference. Such consolidated
financial statements and schedules are, and audited financial
statements and schedules to be included in subsequently filed
documents will be, incorporated herein in reliance upon the reports
of Ernst & Young LLP pertaining to such financial statements (to the
extent covered by consents filed with the Securities and Exchange
Commission) given upon the authority of such firm as experts in
accounting and auditing.
Part II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee $43,103.75
Legal fees and expenses 100,000
Accounting fees and expenses 50,000
Printing and engraving expenses 75,000
Trustee's fees and expenses 2,000
Rating Agencies' fees 50,000
Blue Sky Fees and Expenses 25,000
Miscellaneous 49,896.25
_________
Total $395,000
=========
</TABLE>
Except for the SEC registration fee, all of the foregoing are
estimates.
Item 15. Indemnification of Officers and Directors
The Company's Restated Articles of Incorporation and Amended and
Restated Bylaws provide that the Company shall indemnify its
directors, officers, employees and agents to the fullest extent
permitted by the Iowa Business Corporation Act (the "IBCA"). The
IBCA provides that a company may indemnify its officers and directors if
(i) the person acted in good faith, and (ii) the person reasonably
believed, in the case of conduct in the person's official capacity
with the Company, that the conduct was in the Company's best
interests, and in all other cases, that the person's conduct was at
least not opposed to the Company's best interests, and (iii) in the
case of any criminal proceeding, the person had no reasonable cause
to believe the person's conduct was unlawful. The Company is
required to indemnify officers and directors against reasonable
expenses incurred in connection with any proceeding in which they
are wholly successful, on the merits or otherwise, to which the
person may be a party because of the person's position with the
Company. If the proceeding is by or in the right of the Company,
indemnification may be made only for reasonable expenses and may not
be made in respect of any proceeding in which the person shall have
been adjudged liable to the Company. Further, any such person may
not be indemnified in respect of any proceeding that charges
improper personal benefit to the person, in which the person shall
have been adjudged to be liable.
The Company maintains directors' and officers' liability insurance,
which indemnifies directors and officers of the Company against
certain damages and expenses relating to claims against them caused
by negligent acts, errors or omissions.
Item 16. Exhibits
Exhibit
Number Description of Exhibit
1.1 Form of Underwriting Agreement**
1.2 Form of Agency Agreement**
4.1 Form of Indenture under which the Debt Securities are to be
issued
4.2 Form of Debt Securities**
5 Opinion of Nyemaster, Goode, McLaughlin, Voigts, West, Hansell &
O'Brien, P.C.
12 Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Nyemaster, Goode, McLaughlin, Voigts, West,
Hansell & O'Brien, P.C. (included in Exhibit 5 hereto)
23.2 Consent of Ernst & Young LLP
24 Power of Attorney (set forth on the signature page of this
Registration Statement)
25 Statement of Eligibility of the Trustee on Form T-1
_________________
** To be filed by amendment or incorporated by reference from
other documents filed with the Commission.
Item 17. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do
not apply if the information required to be included in a posteffective
amendment by those paragraphs is contained in periodic reports filed by
the Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the Registration Statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(c) If the securities to be registered are to be offered at
competitive bidding, the undersigned Registrant hereby undertakes: (1)
to use its best efforts to distribute prior to the opening of bids, to
prospective bidders, underwriters, and dealers, a reasonable number of
copies of a prospectus which at that time meets the requirements of
Section 10(a) of the Act, and relating to the securities offered at
competitive bidding, as contained in the Registration Statement,
together with any supplements thereto, and (2) to file an amendment
to the Registration Statement reflecting the results of bidding,
the terms of the reoffering and related matters to the extent required
by the applicable form, not later than the first use, authorized by
the issuer after the opening of bids, of a prospectus relating to the
securities offered at competitive bidding, unless no further public
offering of such securities by the issuer and no reoffering of such
securities by the purchasers is proposed to be made.
(d) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the 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.
(e) The undersigned Registrant hereby undertakes that
(1) for purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this Registration Statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the
Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective; and
(2) for the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(f) The undersigned Registrant hereby undertakes to file, if
necessary, an application for the purpose of determining the
eligibility of the Trustee to act under subsection (a) of Section 310
of the Trust Indenture Act of 1939, as amended, in accordance with the
rules and regulations prescribed by the Securities and Exchange
Commission under Section 305(b)(2) of such Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Des Moines, State of Iowa, on
January 17, 1995.
EQUITABLE OF IOWA COMPANIES
By /s/ Fred S. Hubbell
_________________________
Fred S. Hubbell
Chairman, President and Chief
Executive Officer
(Principal Executive Officer)
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Fred S. Hubbell, Paul E.
Larson and John A. Merriman, and each of them, as true and lawful
attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and
all capacities to sign any or all amendments, including post-effective
amendments, to this Registration Statement, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorneys-in-
fact and agents, and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to be done
in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or either of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
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.
Name Title Date
____ _____ _____
/s/ Fred S. Hubbell Chairman of the Board, President January 17, 1995
_____________________ and Chief Executive Officer
Fred S. Hubbell (Principal Executive Officer)
/s/ Paul E. Larson Executive Vice President, Treasurer January 17, 1995
_____________________ and Chief Financial Officer
Paul E. Larson (Principal Financial Officer)
/s/ David A. Terwilliger Vice President and Controller January 17, 1995
________________________ (Principal Accounting Officer)
David A. Terwilliger
/s/ Richard B. Covey Director January 17, 1995
_____________________
Richard B. Covey
/s/ Doris M. Drury Director January 17, 1995
_____________________
Doris M. Drury
/s/ James L. Heskett Director January 17, 1995
_____________________
James L. Heskett
/s/ Richard S. Ingham, Jr. Director January 17, 1995
_____________________
Richard S. Ingham, Jr.
/s/ Robert E. Lee Director January 17, 1995
_____________________
Robert E. Lee
/s/ James E. Luhrs Director January 17, 1995
_____________________
James E. Luhrs
/s/ Jack D. Rehm Director January 17, 1995
_____________________
Jack D. Rehm
/s/ Thomas N. Urban Director January 17, 1995
_____________________
Thomas N. Urban
/s/ Hans F. E. Wachtmeister Director January 17, 1995
___________________________
Hans F. E. Wachtmeister
/s/ Richard S. White Director January 17, 1995
_____________________
Richard S. White
EXHIBIT INDEX
to Registration Statement on
Form S-3
EQUITABLE OF IOWA COMPANIES
Exhibit
Number Description of Exhibit
1.1 Form of Underwriting Agreement*
1.2 Form of Agency Agreement*
4.1 Form of Indenture under which the
Debt Securities are to be issued
4.2 Form of Debt Securities*
5 Opinion of Nyemaster, Goode, McLaughlin,
Voigts, West, Hansell & O'Brien, P.C.
12 Computation of Ratio of Earnings
to Fixed Charges
23.1 Consent of Nyemaster, Goode, McLaughlin,
Voigts, West, Hansell & O'Brien, P.C.
(included in Exhibit 5 hereto)
23.2 Consent of Ernst & Young LLP
24 Power of Attorney (set forth on the
signature page of this Registration
Statement)
25 Statement of Eligibility of the Trustee
on Form T-1
_________________
* To be filed by amendment or incorporated by reference
from other documents filed with the Commission.
EXHIBIT 4.1
______________________________________________________________________________
Equitable of Iowa Companies, Issuer
AND
The First National Bank of Chicago, Trustee
Indenture
Dated as of January 17, 1995
______________________________________________________________________________
CROSS REFERENCE SHEET
_______________________________
Showing the location of the provisions of Trust
Indenture Act of 1939 in the Indenture dated as of January 17,
1995 between Equitable of Iowa Companies and The First National
Bank of Chicago, Trustee:
Section of the Act Section of Indenture
___________________ __________________________
310(a)(1), (2) and (5) 6.9
310(a)(3) and (4) Inapplicable
310(b) 6.8 and 6.10
310(c) Inapplicable
311(a) 6.13(a) and (c)
311(b) 6.13(b)
311(c) Inapplicable
312(a) 4.1 and 4.2(a)
312(b) 4.2(a) and (b)
312(c) 4.2(c)
313(a) 4.4(a)
313(a)(6) Inapplicable
313(b)(1) Inapplicable
313(b)(2) 4.4(b)
313(c) 4.4(c)
313(d) 4.4(d)
314(a) 4.3
314(b) Inapplicable
314(c)(1) and (2) 11.5
314(c)(3) Inapplicable
314(d) Inapplicable
314(e) 11.5
314(f) Inapplicable
315(a), (c) and (d) 6.1
315(b) 5.11
315(e) 5.12
316(a)(1) 5.9 and 5.10
316(a)(2) Not required
316(a) (last sentence) 7.4
316(b) 5.7
316(c) Inapplicable
317(a) 5.2
317(b) 3.4(a) and (b)
318(a) 11.7
_________________________
* This Cross Reference Sheet is not part of the Indenture.
TABLE OF CONTENTS
_______________________________
Page
PARTIES 1
RECITALS
Authorization of Indenture 1
Compliance with Legal Requirements 1
Purpose of and Consideration for Indenture 1
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined 1
Authenticating Agent 2
Authorized Newspaper 2
Board of Directors 2
Board Resolution 2
Business Day 2
Capital Stock 2
Commission 2
Corporate Trust Office 2
Coupon 2
covenant defeasance 3
Debt 3
default 3
defeasance and discharge 3
Depositary 3
Dollar 3
ECU 3
Event of Default 3
Exchange Act 3
Foreign Currency 3
Government Obligations 3
Holder, Holder of Securities,
Securityholder 4
Indenture 4
Interest 4
Internal Revenue Code 4
Issuer 4
Issuer Order 4
Judgment Currency 4
Notice of Default 4
Officers' Certificate 4
Opinion of Counsel 4
original issue date 5
Original Issue Discount Security 5
Outstanding 5
Periodic Offering 6
Person 6
principal 6
property 6
Record Date 6
Registered Global Security 6
Registered Security 6
Required Currency 6
Responsible Officer 6
Restricted Subsidiary 7
Securities Act 7
Security or Securities 7
Security Register and Security Registrar 7
series 7
subsidiary 7
Trust Indenture Act 7
Trustee 7
Unregistered Security 7
Yield to Maturity 8
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally 8
SECTION 2.2 Form of Trustee's Certificate
of Authentication 8
SECTION 2.3 Amount Unlimited; Issuable in Series 9
SECTION 2.4 Authentication and Delivery of Securities 13
SECTION 2.5 Execution of Securities 16
SECTION 2.6 Certificate of Authentication 16
SECTION 2.7 Denomination and Date of Securities;
Payments of Interest 17
SECTION 2.8 Registration, Transfer and Exchange 18
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and
Stolen Securities 21
SECTION 2.10 Cancellation of Securities; Disposition
Thereof 22
SECTION 2.11 Temporary Securities 23
SECTION 2.12 CUSIP Numbers 23
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest 24
SECTION 3.2 Offices for Payments, etc. 25
SECTION 3.3 Appointment to Fill a Vacancy in
Office of Trustee 26
SECTION 3.4 Paying Agents 26
SECTION 3.5 Corporate Existence and Power 27
SECTION 3.6 Limitation on Liens on Stock of Restricted
Subsidiaries 27
SECTION 3.7 Limitation on Issuance or Disposition of
Stock of Restricted Subsidiaries 27
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Names and Addresses
of Securityholders 28
SECTION 4.2 Preservation and Disclosure of
Securityholders Lists 28
SECTION 4.3 Reports by the Issuer 30
SECTION 4.4 Reports by the Trustee 30
SECTION 4.5 Publication of Certain Notices 32
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of
Maturity; Waiver of Default 32
SECTION 5.2 Collection of Indebtedness by Trustee; Trustee
May Prove Debt 36
SECTION 5.3 Application of Proceeds 38
SECTION 5.4 Suits for Enforcement 39
SECTION 5.5 Restoration of Rights on Abandonment of
Proceedings 39
SECTION 5.6 Limitations on Suits by Securityholders 39
SECTION 5.7 Unconditional Right of Securityholders to
Institute Certain Suits 40
SECTION 5.8 Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default 40
SECTION 5.9 Control by Holders of Securities 40
SECTION 5.10 Waiver of Past Defaults 41
SECTION 5.11 Trustee to Give Notice of Default, But May
Withhold in Certain Circumstances 41
SECTION 5.12 Right of Court to Require Filing of
Undertaking to Pay Costs 42
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee;
During Default; Prior to Default 42
SECTION 6.2 Certain Rights of the Trustee 43
SECTION 6.3 Trustee Not Responsible for Recitals,
Disposition of Securities or Application
of Proceeds Thereof 45
SECTION 6.4 Trustee and Agents May Hold Securities or
Coupons; Collections, etc. 45
SECTION 6.5 Moneys Held by Trustee 45
SECTION 6.6 Compensation and Indemnification of
Trustee and Its Prior Claim 45
SECTION 6.7 Right of Trustee to Rely on Officers'
Certificate, etc. 46
SECTION 6.8 Qualification of Trustee; Conflicting
Interests 46
SECTION 6.9 Persons Eligible for Appointment as Trustee 53
SECTION 6.10 Resignation and Removal; Appointment of
Successor Trustee 53
SECTION 6.11 Acceptance of Appointment by Successor
Trustee 55
SECTION 6.12 Merger, Conversion, Consolidation or Succession
To Business of Trustee 56
SECTION 6.13 Preferential Collection of Claims Against
the Issuer 57
SECTION 6.14 Appointment of Authenticating Agent 61
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders 62
SECTION 7.2 Proof of Execution of Instruments and of
Holding of Securities 62
SECTION 7.3 Holders to be Treated as Owners 63
SECTION 7.4 Securities Owned by Issuer Deemed Not
Outstanding 64
SECTION 7.5 Right of Revocation of Action Taken 64
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent
of Securityholders 65
SECTION 8.2 Supplemental Indentures With Consent of
Securityholders 67
SECTION 8.3 Effect of Supplemental Indenture 69
SECTION 8.4 Documents to be Given to Trustee 69
SECTION 8.5 Notation on Securities in Respect of
Supplemental Indentures 69
ARTICLE NINE
CONSOLIDATION, MERGER, AND TRANSFER OF ASSETS
SECTION 9.1 Issuer May Consolidate, Merge or Transfer Assets
on Certain Terms 70
SECTION 9.2 Successor Person to be Substituted 70
SECTION 9.3 Opinion of Counsel to be Given to Trustee 71
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge 71
SECTION 10.2 Application by Trustee of Funds Deposited for
Payment
of Securities 76
SECTION 10.3 Repayment of Moneys Held by Paying Agent 77
SECTION 10.4 Return of Moneys Held by Trustee and Paying
Agent Unclaimed for Two Years 77
SECTION 10.5 Indemnity for Government Obligations 78
SECTION 10.6 Reinstatement 78
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and
Directors of
Issuer Exempt from Individual Liability 78
SECTION 11.2 Provisions of Indenture for the Sole Benefit of
Parties
and Holders of Securities and Coupons 78
SECTION 11.3 Successors and Assigns of Issuer Bound by
Indenture 79
SECTION 11.4 Notices and Demands on Issuer, Trustee and
Holders of Securities and Coupons 79
SECTION 11.5 Officers' Certificates and Opinions of Counsel;
Statements to be Contained Therein 79
SECTION 11.6 Payments Due on Saturdays, Sundays and
Holidays 81
SECTION 11.7 Conflict of Any Provision of Indenture with
Trust Indenture Act of 1939 81
SECTION 11.8 New York Law to Govern 81
SECTION 11.9 Counterparts 81
SECTION 11.10 Effect of Headings 81
SECTION 11.11 Securities in a Foreign Currency or in ECU 81
SECTION 11.12 Judgment Currency 82
SECTION 11.13 Waiver by Holders 83
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article 83
SECTION 12.2 Notice of Redemption; Partial Redemptions 83
SECTION 12.3 Payment of Securities Called for Redemption 85
SECTION 12.4 Exclusion of Certain Securities from Eligibility
for Selection for Redemption 86
SECTION 12.5 Mandatory and Optional Sinking Funds 86
TESTIMONIUM 89
SIGNATURES 89
THIS INDENTURE dated as of January 17, 1995 between
Equitable of Iowa Companies, an Iowa corporation, as the Issuer,
and The First National Bank of Chicago, as trustee (the
"Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from
time to time of its unsecured debt securities to be issued in
one or more series (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, the Issuer has duly authorized the execution
and delivery of this Indenture to provide, among other things,
for the authentication, delivery and administration of the
Securities; and
WHEREAS, all things necessary to make this Indenture a
valid indenture and agreement according to its terms have been
done;
NOW, THEREFORE:
In consideration of the premises and the purchases of
the Securities by the holders thereof, the Issuer and the Trustee
mutually covenant and agree for the equal and proportionate
benefit of the respective holders from time to time of the
Securities and of the Coupons, if any, appertaining thereto as
follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following
terms (except as otherwise expressly provided or unless the
context otherwise clearly requires) for all purposes of this
Indenture (including any indenture supplemental hereto and all
Securities issued hereunder) shall have the respective meanings
specified in this Section. All other terms used in this
Indenture that are defined in the Trust Indenture Act or the
definitions of which in the Securities Act are referred to in the
Trust Indenture Act, including terms defined therein by reference
to the Securities Act (except as herein otherwise expressly
provided or unless the context otherwise requires), shall have
the meanings assigned to such terms in or pursuant to the Trust
Indenture Act as in force at the date of this Indenture. All
accounting terms used herein and not otherwise expressly defined
shall have the meanings assigned to such terms in accordance with
generally accepted accounting principles in the United States,
and unless otherwise specified the term "generally accepted
accounting principles" means such accounting principles as are
generally accepted in the United States at the time of any
computation. The words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision.
The word "including" shall be construed to mean "including, but
not limited to", whenever used herein. The terms defined in this
Article include the plural as well as the singular.
"Authenticating Agent" shall have the meaning set
forth in Section 6.14.
"Authorized Newspaper" means, to the extent specified
in item (23) of Section 2.3 or in or pursuant to any Board
Resolution or supplemental indenture referred to in Section 2.3,
the newspaper or newspapers so specified or, if not so specified,
means with respect to each country which is so specified or which
is required by Section 4.5 a newspaper published in an official
language of such country of publication customarily published at
least once a day for at least five days in each calendar week and
of general circulation in such country so specified or required.
If it shall be impractical in the opinion of the Trustee to make
any publication of any notice required hereby in an Authorized
Newspaper, any publication or other notice in lieu thereof which
is made or given with the approval of the Trustee shall
constitute a sufficient publication of such notice.
"Board of Directors" means either the Board of
Directors of the Issuer or any committee of such Board duly
authorized to act on its behalf.
"Board Resolution" means one or more resolution of the
Board of Directors, a copy of which has been certified by the
secretary or an assistant secretary of the Issuer to have been
duly adopted or consented to by the Board of Directors and to be
in full force and effect, and delivered to the Trustee.
"Business Day" means, with respect to any series of
Securities, a day on which, in any city where amounts are payable
on the Securities of such series as herein or therein specified,
banking institutions are not authorized or required by law or
regulation to close.
"Capital Stock" means and includes any and all shares,
interests, rights to purchase, warrants, options, participations
or other equivalents of or interests in (however designated)
corporate stock.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Exchange Act, or if at any time after the execution and delivery
of this Indenture such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"Corporate Trust Office" means the office of the
Trustee at which the corporate trust business of the Trustee
shall, at any particular time, be principally administered, which
office is, at the date as of which this Indenture is dated,
located at One First National Plaza - Suite 0126, Chicago,
Illinois 60670-0126, Attention: Corporate Trust Services
Division.
"Coupon" means any interest coupon appertaining to a
Security.
"covenant defeasance" shall have the meaning set forth
in Section 10.1(C).
"Debt" shall have the meaning set forth in Section 3.6.
"default" shall have the meaning set forth in Section
5.11.
"defeasance and discharge" shall have the meaning set
forth in Section 10.1(B).
"Depositary" means, with respect to the Securities of
any series issuable or issued in the form of one or more
Registered Global Securities, the Person designated as Depositary
by the Issuer pursuant to Section 2.3 until a successor
Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall
mean 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 each
Depositary with respect to the Registered Global Securities of
such series.
"Dollar" and the symbol "$" means the coin or currency
of the United States of America as at the time of payment is
legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and
revised from time to time by the Council of European Communities
or any successor thereto.
"Event of Default" means any event or condition
specified as such in Section 5.1.
"Exchange Act" means the Securities Exchange Act of
1934 and the rules and regulations promulgated thereunder, as
amended from time to time.
"Foreign Currency" means a currency issued by the
government of a country other than the United State of America.
"Government Obligations" means, unless otherwise
specified with respect to Securities of any series pursuant to
Section 2.3, securities that are (a) direct obligations of the
government which issued the currency in which the Securities of a
particular series are payable for the payment of which its full
faith and credit is pledged or (b) obligations of a Person
controlled or supervised by and acting as an agency or
instrumentality of such government the payment of which is
unconditionally guaranteed as a full faith and credit obligation
by such government, which, in either case, are payable in such
currency and are not callable or redeemable at the option of the
issuer thereof, and shall also include a depository receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities
Act) as custodian with respect to any such Government Obligation
or a specific payment of principal of or interest on any such
Government Obligation held by such custodian for the account of
the holder of such depository receipt, provided that (except as
provided by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in
respect of such Government Obligation or the specific payment of
principal of or interest on such Government Obligation evidenced
by such depository receipt.
"Holder", "Holder of Securities", "Securityholder" or
other similar terms mean (a) in the case of any Registered
Security, the Person in whose name such Security is registered in
the Security Register kept by the Security Registrar for that
purpose in accordance with the terms hereof, and (b) in the case
of any Unregistered Security, the bearer of such Security, or any
Coupon appertaining thereto, as the case may be.
"Indenture" means this instrument as originally
executed and delivered or, if amended or supplemented as herein
provided, as so amended or supplemented or both from time to
time, and shall include the forms and terms of particular series
of Securities established as provided hereunder.
"Interest" means, when used with respect to non-
interest bearing Securities, interest payable after maturity.
"Internal Revenue Code" shall mean the Internal Revenue
Code of 1986, as amended, and the regulations thereunder, and any
reference to a specific section thereof shall be deemed to
include the words "or any successor provision thereto".
"Issuer" means (except as otherwise provided in Section
6.8(d)) Equitable of Iowa Companies, an Iowa corporation and,
subject to Article Nine, its successors and assigns.
"Issuer Order" means a written statement, request or
order of the Issuer signed in its name by the Chairman of the
Board of Directors, the President or any Vice President (whether
or not designated by a number or numbers or a word or words added
before or after the title "Vice President") and by the Treasurer,
any Assistant Treasurer, the Secretary, any Assistant Secretary,
the Controller or any Assistant Controller of the Issuer.
"Judgment Currency" shall have the meaning set forth in
Section 11.12.
"Notice of Default" shall have the meaning set forth in
Section 5.1(d).
"Officers' Certificate" means a certificate signed by
the Chairman of the Board of Directors, the President or any Vice
President (whether or not designated by a number or numbers or a
word or words added before or after the title "Vice President")
and by the Treasurer, any Assistant Treasurer, the Secretary, any
Assistant Secretary, the Controller or any Assistant Controller
of the Issuer and delivered to the Trustee. Each such
certificate shall include the statements provided for in Section
11.5, if and to the extent required thereby.
"Opinion of Counsel" means, for the purpose of Section
10.1, a written opinion of outside legal counsel regularly
employed by the Issuer and, for all other proposes hereof, means
an opinion in writing signed by legal counsel, who may be an
employee of, or counsel to, the Issuer. Each such opinion shall
include the statements provided for in Section 11.5, if and to
the extent required thereby.
"original issue date" of any Security (or portion
thereof) means the earlier of (a) the date of such Security or
(b) the date of any Security (or portion thereof) for which such
Security was issued (directly or indirectly) on registration of
transfer, exchange or substitution.
"Original Issue Discount Security" means (i) 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 5.1 and
(ii) any other Security deemed an original issue discount
security for United States federal income tax purposes.
"Outstanding" (except as otherwise provided in Section
6.8(e)), when used with reference to Securities, shall, subject
to the provisions of Section 7.4, 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) Subject to Article 10, Securities, or portions
thereof, for the payment or redemption of which moneys or
Government Obligations (as provided for in Section 10.1) in the
necessary amount and in the required currency shall have been
deposited in trust with the Trustee or with any paying agent
(other than the Issuer or any other obligor upon the Securities)
or shall have been set aside, segregated and held in trust by the
Issuer or any other obligor upon the Securities (if the Issuer or
any other obligor upon the Securities shall act as its own paying
agent) for the Holders of such Securities, provided that if such
Securities, or portions thereof, are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given
as herein provided, or provision satisfactory to the Trustee
shall have been made for giving such notice; and
(c) Securities which shall have been paid or in
substitution for which other Securities shall have been
authenticated and delivered pursuant to the terms of Section 2.9
(except with respect to any such Security as to which proof
satisfactory to the Trustee is presented that such Security is
held by a Person in whose hands such Security is a legal, valid
and binding obligation of the Issuer).
In determining whether the Holders of the requisite
principal amount of Outstanding Securities of any or all series
have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, the principal amount of an Original
Issue Discount Security that shall be deemed to be Outstanding
for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such
determination upon a declaration of acceleration of the maturity
thereof pursuant to Section 5.1.
"Periodic Offering" means an offering of Securities of
any series from time to time, the specific terms of which
Securities, including, without limitation, the rate or rates of
interest, if any, thereon, the stated maturity or maturities
thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Issuer or its agents upon
the issuance of such Securities.
"Person" means any individual, corporation,
partnership, joint venture, association, joint stock company,
trust, unincorporated organization or government or any agency or
political subdivision thereof.
"principal", whenever used with reference to the
Securities or any Security or any portion thereof shall be deemed
to include the words "and premium, if any", and unless otherwise
provided in accordance with Section 2.3, shall mean with respect
to Original Issue Discount Securities the initial offering price
thereof plus interest accrued to the date of determination at the
semiannual compounding rate (or other compounding rate specified
pursuant to Section 2.3) which is necessary to produce the Yield
to Maturity for such Original Issue Discount Security from the
original issue date thereof.
"property" means any directly held interest of a Person
in any kind of property or asset, whether real, personal or mixed
and whether tangible or intangible and includes, without
limitation, Capital Stock of a subsidiary or other Person.
"Record Date" shall have the meaning set forth in
Section 2.7.
"Registered Global Security" means a Security
evidencing all or a part of a series of Securities issued to the
Depositary for such series or its nominee and registered in the
name of such Depositary or its nominee in accordance with Section
2.4, and bearing the legend prescribed in Section 2.4.
"Registered Security" means any Security registered on
the Security Register of the Issuer.
"Required Currency" shall have the meaning set forth in
Section 11.12.
"Responsible Officer", when used with respect to the
Trustee, means the chairman of the board of directors, any vice
chairman of the board of directors, the chairman of the trust
committee, any vice chairman of the trust committee, the chairman
of the executive committee, any vice chairman of the executive
committee, the president, any vice president (whether or not
designated by a number or numbers or a word or words added before
or after the title "vice president"), the cashier, the secretary,
the treasurer, any trust officer, any assistant trust officer,
any assistant cashier, any assistant secretary, any assistant
treasurer or any other officer or assistant officer of the
Trustee customarily performing functions similar to those
performed by the persons who at the time shall be the above-
designated officers, respectively, or to whom any corporate trust
matter is referred because of his knowledge of and familiarity
with the particular subject.
"Restricted Subsidiary" means each of Equitable Life
Insurance Company of Iowa and USG Annuity & Life Company, in each
case so long as it remains a subsidiary of the Issuer, as well as
any subsidiary of the Issuer that is a successor to all or a
principal part of the business of any such subsidiary.
"Securities Act" means the Securities Act of 1933 as in
force at the date as of which this Indenture was originally
executed.
"Security" or "Securities" (except as otherwise
provided in Section 6.8) shall have the meaning stated in the
first recital of this Indenture or, as the case may be,
Securities that have been authenticated and delivered under this
Indenture.
"Security Register" and "Security Registrar" shall have
the respective meanings set forth in Section 2.8.
"series" when used within reference to a "series of
Securities" means all Securities denoted as part of the same
series authorized by or pursuant to a Board Resolution, Officers'
Certificate or supplemental indenture.
"subsidiary" means, with respect to any Person, any
corporation, association, partnership or other business entity of
which more than 50% of the total voting power of shares of
Capital Stock or other interests (including partnership
interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or
indirectly, by (i) such Person, (ii) such Person and one or more
subsidiaries of such Person or (iii) one or more subsidiaries of
such Person.
"Trust Indenture Act " (except as otherwise provided in
Sections 8.1, 8.2 and 11.7) means the Trust Indenture Act of 1939
as in force at the date as of which this Indenture was originally
executed; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" shall mean, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person identified as "Trustee" in
the first paragraph hereof and, subject to the provisions of
Article Six, shall also include any successor trustee. "Trustee"
shall also mean or include each Person who is then a trustee
hereunder; and if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series
shall mean the trustee with respect to the Securities of such
series and shall apply to each such Trustee only with respect to
those series of Securities for which it is serving as Trustee.
"Unregistered Security" means any Security other than a
Registered Security.
"Yield to Maturity" means 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, in accordance with accepted financial
practice.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each
series and the Coupons, if any, to be attached thereto shall be
substantially in such form or forms (not inconsistent with this
Indenture) as shall be established by or pursuant a Board
Resolution (as set forth in a Board Resolution or, to the extent
established pursuant to rather than set forth in a Board
Resolution, as set forth in 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 or such Board Resolution, Officers' Certificate
or supplemental indenture, and may have imprinted or otherwise
reproduced thereon such letters, numbers or other marks of
identification and 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 and Coupons, if any, as
evidenced by their execution of such Securities and Coupons,
provided, however, that all such Securities must either be issued
in registered form for purposes of Section 163(f) of the Internal
Revenue Code, or in a manner such that the Securities are
described in Section 163(f)(2)(B) of the Internal Revenue Code.
If temporary Securities of any series are issued as permitted by
Section 2.11, the form thereof shall be established as provided
in the preceding sentence.
The definitive Securities and Coupons, if any, 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 and Coupons, if any, as
evidenced by their execution of such Securities and Coupons.
SECTION 2.2 Form of Trustee's Certificate of
Authentication. The Trustee's certificate of authentication on
all Securities shall be in substantially the following form:
"This is one of the Securities referred to in the
within-mentioned Indenture.
The First National Bank of Chicago,
as Trustee
By _____________________________
Authorized Officer"
If at any time there shall be an Authenticating Agent
appointed with respect to any series of Securities, then the
Securities of such series shall bear, in lieu of the Trustee's
certificate of authentication, an alternate certificate of
authentication which shall be substantially as follows:
"This is one of the Securities referred to in the
within-mentioned Indenture.
The First National Bank of Chicago,
as Trustee
By _____________________________,
as Authenticating Agent
By _____________________________
Authorized Officer"
SECTION 2.3 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered and Outstanding under this Indenture
is unlimited.
The Securities may be issued in one or more series and,
unless otherwise established by or pursuant to any Board
Resolution, Officers' Certificate or supplemental indenture
provided or adopted pursuant to this Section, each such series
shall rank pari passu with all other unsecured and unsubordinated
debt of the Issuer. There shall be established by or pursuant to
one or more Board Resolutions (and to the extent established
pursuant to rather than set forth in a Board Resolution, in an
Officers' Certificate detailing such establishment) or
established in one or more indentures supplemental hereto, prior
to the initial issuance of Securities of any series:
(1) the designation of the Securities of such series,
which shall distinguish the Securities of such series from the
Securities of all other series;
(2) any limit upon the aggregate principal amount of
the Securities of such series that may be authenticated and
delivered and Outstanding 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 such series pursuant to Section 2.8, 2.9, 2.11, 5.3, 8.5 or
12.3);
(3) the percentage of the principal amount
representing the price for which the Securities of such series
shall be issued;
(4) if other than Dollars, the coin or currency or
units based on or relating to foreign currencies in which the
Securities of such series are denominated (including, but not
limited to, any Foreign Currency or ECU);
(5) the date or dates (or manner of determining the
same) on which the principal of the Securities of such series is
payable;
(6) the rate or rates at which the Securities of such
series shall bear interest, if any, the date or dates from which
such interest shall accrue, on which such interest shall be
payable and (in the case of Registered Securities) 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 (if other than as provided
in Section 2.7);
(7) the index, if any, used to determine the amount
of payments of principal of and any interest on the Securities of
such series;
(8) the place or places where the principal of and
any interest on Securities of such series shall be payable, any
Registered Securities of such series may be surrendered for
registration of transfer, any Securities of such series may be
surrendered for exchange, and notices and demands to or upon the
Issuer in respect of the Securities of such series and this
Indenture may be served (if other than as provided in Section
3.2), except that payments with respect to Securities described
in Section 163(f)(2)(B) of the Internal Revenue Code shall only
be payable outside the United States and its possessions as
provided for in Section 3.2 (except the limited circumstances
provided in Section 3.2);
(9) the right, if any, of the Issuer to redeem
Securities of such series, in whole or in part, at its option and
the period or periods within or the date upon which, the price or
prices at which, the coin or currency or units based on or
relating to foreign currencies in which and any terms and
conditions upon which Securities of such series may be so
redeemed, in whole or in part, pursuant to any sinking fund or
otherwise;
(10) the obligation, if any, of the Issuer to redeem,
purchase or repay Securities of such series pursuant to any
mandatory redemption, sinking fund or analogous provisions or at
the option of a Holder thereof and the price or prices at which,
the coin or currency or units based on or relating to foreign
currencies in which and the period or periods within or the date
upon which and any terms and conditions upon which Securities of
such series shall be redeemed, purchased or repaid, in whole or
in part, pursuant to such obligation;
(11) if other than denominations of $1,000 and any
integral multiple thereof in the case of Registered Securities,
or $1,000 and $5,000 in the case of Unregistered Securities, the
denominations in which Securities of such series shall be
issuable;
(12) if other than the stated principal amount
thereof, the portion of the principal amount of Securities of
such series which shall be payable upon declaration of
acceleration of the maturity thereof and/or the method by which
such amount shall be determined;
(13) if other than the coin or currency in which the
Securities of such series are denominated, the coin or currency
or units based on or relating to foreign currencies in which
payment of the principal of or any interest on the Securities of
such series shall be payable;
(14) if the principal of or interest on the
Securities of such series are to be payable, at the election of
the Issuer or a Holder thereof, in a coin or currency or units
based on or relating to foreign currencies other than that in
which the Securities of such series are denominated or stated to
be payable, the period or periods within or the date upon which,
and the terms and conditions upon which, such election may be
made, and the time and manner of determining the exchange rate
between the coin or currency or units based on or relating to
foreign currencies in which such Securities are denominated or
stated to be payable and the coin or currency or units based on
or relating to foreign currencies in which such Securities are
payable;
(15) if the amount of payments of the principal of or
any interest on the Securities of such series may be determined
with reference to an index based on a coin or currency other than
that in which the Securities of such series are denominated or
stated to be payable, the manner in which such amounts shall be
determined, and the time and manner of determining the exchange
rate between the coin or currency or units based on or relating
to foreign currencies in which such Securities are denominated or
stated to be payable and the coin or currency or units based on
or relating to foreign currencies in which such Securities are
payable;
(16) whether the Securities of such series will be
issuable as Registered Securities (and if so, whether such
Securities will be issuable in whole or in part as Registered
Global Securities) or Unregistered Securities (with or without
Coupons), or any combination of the foregoing, any restrictions
applicable to the offer, sale, delivery, transfer or exchange of
Unregistered Securities or the payment of interest thereon and,
if other than as provided in Section 2.8, the terms upon which
Unregistered Securities of such series may be exchanged for
Registered Securities of such series and vice versa, or if the
Securities of such series will be issuable in whole or in part as
Registered Global Securities, the terms and conditions upon which
such Registered Global Securities may be exchanged in whole or in
part for other definitive securities, provided, however, that all
Securities must either be issued in registered form for purposes
of Section 163(f) of the Internal Revenue Code, or in a manner
such that the Securities are described in Section 163(f)(2)(B) of
the Internal Revenue Code;
(17) if the Securities of such series are to be
issuable in definitive form (whether upon original issue or upon
exchange of a temporary Security of such series) only upon
receipt of certain certificates or other documents or
satisfaction of other conditions, the form and terms of such
certificates, documents or conditions if other than as provided
in Section 2.11;
(18) if a Person other than The First National Bank
of Chicago is to act as Trustee, for the Securities of such
series, the name and location of the Corporate Trust Office of
such Trustee;
(19) if the Securities of such series do not bear
interest, the applicable dates for the purposes of Section 4.1;
(20) if other than as set forth in Section 10.1, any
provisions for the satisfaction and discharge of the Issuer's
indebtedness and obligations under this Indenture, or the
termination of certain covenants of the Issuer hereunder, with
respect to the Securities of such series;
(21) any depositaries, authenticating or paying
agents, transfer agents or registrars, currency determination
agents or any other agents with respect to the Securities of such
series;
(22) any additions to or deletions from the Events of
Default or covenants of the Issuer (including the covenants
contained in Articles 3 and 9 hereof) with respect to the
Securities of such series, whether or not any additional Event of
Default or additional covenant is consistent with the Events of
Default or covenants set forth herein;
(23) if the Securities of such series are to be
issued as Unregistered Securities, the countries, cities and/or
newspaper or newspapers in such countries or cities in which
notices required pursuant to Sections 5.11, 6.8, 6.10(a), 6.11,
6.14, 8.2, 10.4, 12.2 and 12.5 are to be published (and unless
otherwise specified in such Board Resolution or any Officers'
Certificate delivered pursuant thereto or supplemental indenture,
such newspaper will, if practicable, be (a) in the case of The
City of New York, The Wall Street Journal (Eastern Edition), (b)
in the case of the United Kingdom, The Financial Times (London
Edition) and (c) in the case of Luxembourg, The Luxemburger
Wort);
(24) any subordination of the Securities of such
series to other indebtedness of the Issuer (including the
Securities of any other series); and
(25) any other terms of the Securities of such series
(which terms shall not adversely affect the interests of any
Holders of Securities then Outstanding).
All Securities of any one series and Coupons, if any,
appertaining thereto shall be substantially identical, except as
to denomination and except as may otherwise be provided by or
pursuant to the Board Resolution or Officers' Certificate
referred to above or as set forth in any indenture supplemental
hereto referred to above. 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 in any such indenture supplemental hereto. The
absence of a reference in any other Section of this Indenture to
this Section 2.3 shall not restrict the ability of the Issuer to
establish the terms of the Securities of any series pursuant to
this Section 2.3.
SECTION 2.4 Authentication and Delivery of
Securities. The Issuer may from time to time deliver Securities
of any series, having attached thereto appropriate Coupons,
executed by the Issuer 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 Issuer (contained in
the Issuer 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 an Issuer
Order. If so provided in or pursuant to the Board Resolution or
supplemental indenture establishing the Securities of any series,
the maturity date, original issue date, interest rate and any
other terms of any or all of the Securities of such series and
the Coupons, if any, appertaining thereto may be determined by or
pursuant to such Issuer Order and procedures. If provided for in
such procedures, such Issuer Order may authorize authentication
and delivery pursuant to oral or electronic instructions from the
Issuer 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 be
entitled to receive (but, in the case of subparagraphs 2, 3 and 4
below, only at or before the time of the first request of the
Issuer to the Trustee to authenticate Securities of such series)
and (subject to Section 6.1) shall be fully protected in relying
upon, unless and until such documents have been superseded or
revoked:
(1) an Issuer Order requesting such authentication and
setting forth delivery instructions if the Securities and the
Coupons, if any, are not to be delivered to the Issuer, provided
that, with respect to Securities of a series subject to a
Periodic Offering, (a) such Issuer Order may be delivered by the
Issuer to the Trustee at any time prior to the delivery to the
Trustee of the Securities of such series for authentication and
delivery, (b) the Trustee shall authenticate and deliver the
Securities of such series for original issue from time to time,
in an aggregate principal amount not exceeding the aggregate
principal amount established for such series, if any, pursuant to
an Issuer Order or pursuant to such procedures acceptable to the
Trustee as may be specified from time to time by an Issuer Order,
(c) if so provided in or pursuant to the Board Resolution or
supplemental indenture establishing the Securities of such
series, the maturity date, original issue date, interest rate and
any other terms of any or all of the Securities of such series
may be determined by an Issuer Order or pursuant to such
procedures and (d) if provided for in such procedures, such
Issuer Order may authorize authentication and delivery pursuant
to oral or electronic instructions from the Issuer or its duly
authorized agent, which instructions shall be promptly confirmed
in writing;
(2) any Board Resolution, Officers' Certificate and/or
executed supplemental indenture referred to in Section 2.1 and
2.3 by or pursuant to which the forms and terms of the Securities
of such series and the Coupons, if any, were established;
(3) an Officers' Certificate setting forth the form or
forms and terms of the Securities of such series and the Coupons,
if any, stating that such form or forms and terms have been
established pursuant to Sections 2.1 and 2.3 and comply with this
Indenture, and covering such other matters as the Trustee may
reasonably request; and
(4) at the option of the Issuer, 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:
(a) the form or forms of the Securities of
such series and the Coupons, if any, have been duly authorized
and established in conformity with the provisions of this
Indenture;
(b) in the case of an underwritten offering,
the terms of the Securities of such series have been duly
authorized and established in conformity with the provisions of
this Indenture, and, in the case of an offering that is not
underwritten, certain terms of the Securities of such series have
been established pursuant to a Board Resolution, an Officers'
Certificate or a supplemental indenture in accordance with the
provisions of this Indenture and when such other terms as are to
be established pursuant to an Issuer Order or procedures set
forth in an Issuer Order shall have been established, all such
terms will have been duly authorized by the Issuer and will have
been established in conformity with the provisions of this
Indenture;
(c) when the Securities of such series and
the Coupons, if any, have been executed by the Issuer 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 Issuer, enforceable in accordance with their respective
terms, subject to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting the
enforcement of creditors' rights and to general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law) and to any implied covenant of
good faith and fair dealing, and will be entitled to the benefits
of this Indenture;
(d) the execution and delivery by the Issuer
of, and the performance by the Issuer of its obligations under,
the Securities of such series and Coupons, if any, will not
contravene any provision of applicable law or the articles of
incorporation or by-laws of the Issuer or, to the best knowledge
of such counsel, (i) any agreement or other instrument binding
upon the Issuer or any of its subsidiaries that is material to
the Issuer and its subsidiaries, considered as one enterprise, or
(ii) any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Issuer or any of its
subsidiaries; and
(e) no consent, approval, authorization,
order, registration or qualification of or with any governmental
agency or body having jurisdiction over the Issuer is required
for the execution and delivery of the Securities of such series
by the Issuer, except such as have been obtained (except that no
opinion need be expressed as to state securities or Blue Sky
laws).
The Trustee shall have the right to decline to
authenticate and deliver any Securities of any series under this
Section (other than Securities the forms and terms of which shall
have been established by supplemental indenture) if the Trustee,
being advised by counsel, determines that such action may not
lawfully be taken by the Issuer or if the Trustee in good faith
by its board of directors, its executive committee or a trust
committee of directors or Responsible Officers of the Trustee
shall determine that such action would expose the Trustee to
personal liability to existing Holders or would affect the
Trustee's rights, duties or immunities under the Securities of
any such series, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3
that the Securities of a series are to be issued in whole or in
part in the form of one or more Registered Global Securities,
then the Issuer shall execute and the Trustee shall, in
accordance with this Section and the Issuer Order with respect to
such series, authenticate and deliver one or more Registered
Global Securities that (i) shall be in an aggregate amount equal
to the aggregate principal amount specified in such Issuer Order,
(ii) shall be registered in the name of the Depositary therefor
or its nominee, (iii) shall be delivered by the Trustee to such
Depositary or pursuant to such Depositary's instructions and (iv)
shall bear a legend substantially to the following effect:
"Unless and until it is exchanged in whole or in part for
Securities in definitive registered form, this Security may not
be transferred except as a whole by the Depositary to the nominee
of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary.", or to such effect as
shall be required by the Depository. If any Security of a series
is issuable in whole or in part in the form of a Registered
Global Security, such Registered Global Security may provide that
it shall represent the aggregate amount of Securities of one or
more series from time to time endorsed thereon; any endorsement
of a Registered Global Security to reflect the amount, or any
increase or decrease in the amount, of Securities of one or more
series represented thereby shall be made by the Trustee in such
manner as shall be specified in such Registered Global Security.
Each Depositary designated pursuant to Section 2.3
must, at the time of its designation and at all times while it
serves as Depositary, be located in the United States and be a
clearing agency registered under the Exchange Act and any other
applicable statute or regulation.
SECTION 2.5 Execution of Securities. The Securities
shall be signed on behalf of the Issuer by both (a) its Chairman
of the Board of Directors or its President or any Vice President
(whether or not designated by a number or numbers or a word or
words added before or after the title "Vice President") and (b)
by its Treasurer or any Assistant Treasurer or its Secretary or
any Assistant Secretary, 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 Issuer 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 validity or enforceability of any
Security that has been duly authenticated and delivered by the
Trustee. The Coupons, if any, applicable to the Securities of
any series shall bear the facsimile signature of the Treasurer or
any Assistant Treasurer of the Issuer and need not bear its
corporate seal.
In case any officer of the Issuer who shall have so
signed any of the Securities or Coupons, if any, shall cease to
be such officer before the Security or Coupon so signed (or the
Security to which the Coupon so signed appertains) shall be
authenticated and delivered by the Trustee or disposed of by the
Issuer, such Security or Coupon nevertheless may be authenticated
and delivered or disposed of as though the person who signed such
Security or Coupon had not ceased to be such officer of the
Issuer; and any Security or Coupon may be so signed on behalf of
the Issuer by such persons as, at the actual date of the
execution of such Security or Coupon, shall be the proper
officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such an
officer.
SECTION 2.6 Certificate of Authentication. Only such
Securities as shall bear thereon a certificate of authentication
substantially in the form hereinbefore recited, executed by the
Trustee by the manual signature of one of its authorized
officers, shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. No Coupon shall be
entitled to the benefits of this Indenture or shall be valid and
obligatory for any purpose until the certificate of
authentication on the Security to which such Coupon appertains
shall have been duly executed by the Trustee. The execution of
such certificate by the Trustee upon any Security executed by the
Issuer 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 2.7 Denomination and Date of Securities;
Payments of Interest. The Securities of each series shall be
issuable as Registered Securities or Unregistered Securities in
denominations and payable in the currency or currency unit
established as contemplated by Section 2.3 or, with respect to
the Registered Securities of any series, if not so established,
in denominations of $1,000 and any integral multiple thereof and
payable in Dollars, or with respect to Unregistered Securities of
any series, if not so established, such Securities shall be
issuable in denominations of $1,000 and $5,000 and payable in
Dollars. 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 Issuer executing
the same may determine with the approval of the Trustee, as
evidenced by the execution and authentication thereof.
Each Registered Security shall be dated the date of its
authentication. Each Unregistered Security shall be dated as
established in or pursuant to the Board Resolution, Officers'
Certificate or supplemental indenture referred to in Section 2.3.
The Securities of each series shall bear interest, if any, from
the date, and such interest shall be payable on the date or
dates, established as contemplated by Section 2.3.
Except as may otherwise be established pursuant to
Section 2.3, the Person in whose name any Registered Security of
any series is registered as of the close of business on any
Record Date applicable to such 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 Registered
Security subsequent to the Record Date and prior to such interest
payment date, except if and to the extent the Issuer shall
default in the payment of the interest due on such interest
payment date, in which case such defaulted interest may, at the
option of the Issuer, be paid to the Persons in whose names
Outstanding Registered Securities of such series are registered
at the close of business on a subsequent special 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 Issuer to the Holders of
Registered Securities of such series not less than 15 days
preceding such subsequent special Record Date; provided, however,
that any interest that is payable at maturity will be payable to
the person to whom principal payable at maturity shall be
payable. The term "Record Date", as used with respect to any
interest payment date (except a special Record Date set for
payment of defaulted interest) for the Securities of any series,
shall mean the date specified as such in the terms of the
Registered Securities of such series established as contemplated
by Section 2.3, or if no such date is so established, if such
interest payment date is the first day of a calendar month, the
fifteenth day of the next preceding calendar month, or, if such
interest payment date is the fifteenth day of a calendar month,
the first day of such calendar month, whether or not such record
date is a Business Day. The Issuer may make payment of any
defaulted interest with respect to the Securities of any series
in any other lawful manner not inconsistent with the requirements
of any securities exchange or interdealer quotation system on
which the Securities of such series may be listed, and upon such
notice as may be required by such exchange or interdealer
quotation system, if, after notice given by the Issuer to the
Trustee of the proposed payment pursuant to this provision, such
payment shall be deemed practicable by the Trustee.
SECTION 2.8 Registration, Transfer and Exchange. The
Issuer will keep, or cause to be kept, at the office or agency
required to be maintained for the purpose as provided in Section
3.2, for each series of Securities a register (the "Security
Register") in which, subject to such reasonable regulations as it
may prescribe, it will provide for the registration of Registered
Securities of such series and the registration of transfer of
Registered Securities of such series. The Security Register
shall be in written form in the English language or in any other
form capable of being converted into such form within a
reasonable time. At all reasonable times, the Security Register
shall be open for inspection by the Trustee. Unless and until
otherwise established by the Issuer pursuant to Section 2.3, the
Security Register with respect to each series of Registered
Securities shall be kept at the Trustee's New York office as
specified in Section 3.2 and, for this purpose, the Trustee shall
be designated the "Security Registrar".
Upon due presentation for registration of transfer of
any Registered Security of any series (other than a Registered
Global Security, except as set forth below) at any office or
agency to be maintained for the purpose as provided in Section
3.2 for such series, the Issuer shall execute and the Trustee
shall authenticate and deliver in the name of the transferee or
transferees a new Registered Security or Registered Securities of
the same series, maturity date and interest rate in authorized
denominations for a like aggregate principal amount.
Unregistered Securities (except for any temporary
global Unregistered Securities) and Coupons (except for Coupons
attached to any temporary global Unregistered Securities) shall
be transferable by delivery.
At the option of the Holder thereof upon request
confirmed in writing, Registered Securities of any series (other
than a Registered Global Security, except as set forth below) may
be exchanged for one or more Registered Securities of such series
in authorized denominations for a like aggregate principal
amount, upon surrender of such Registered Securities to be
exchanged at the office or agency to be maintained for such
purpose in accordance with Section 3.2 and upon payment, if the
Issuer shall so require, of the charges hereinafter provided. If
the Securities of any series are issued in both registered and
unregistered form, except as otherwise specified for a particular
series pursuant to Section 2.3, at the option of the Holder
thereof upon request confirmed in writing, Unregistered
Securities of any series may be exchanged for Registered
Securities of such series in authorized denominations for a like
aggregate principal amount, upon surrender of such Unregistered
Securities to be exchanged at the office or agency to be
maintained for such purpose in accordance with Section 3.2, with,
in the case of Unregistered Securities that have Coupons
attached, all unmatured Coupons and all matured Coupons in
default thereto appertaining, and upon payment, if the Issuer
shall so require, of the charges hereinafter provided. At the
option of the Holder thereof upon request confirmed in writing,
if Unregistered Securities of any series, maturity date, interest
rate and original issue date are issued in more than one
authorized denomination, except as otherwise specified for a
particular series pursuant to Section 2.3, such Unregistered
Securities may be exchanged for other Unregistered Securities of
such series in authorized denominations for a like aggregate
principal amount, upon surrender of such Unregistered Securities
to be exchanged at the office or agency to be maintained for such
purpose in accordance with Section 3.2 or as specified for a
particular series pursuant to Section 2.3, with, in the case of
Unregistered Securities that have Coupons attached, all unmatured
Coupons and all matured Coupons in default thereto appertaining,
and upon payment, if the Issuer shall so require, of the charges
hereinafter provided. Unless otherwise specified for a
particular series pursuant to Section 2.3 (in which case the
applicable provisions of Section 163(f)(2)(B) of the Internal
Revenue Code shall be complied with), Registered Securities of
any series may not be exchanged for Unregistered Securities of
such series. Whenever any Securities are so surrendered for
exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive. All Securities and Coupons
surrendered upon any exchange or transfer provided for in this
Indenture shall be promptly cancelled and disposed of (subject to
the record retention requirements of the Exchange Act) by the
Trustee in accordance with Section 2.10 and the Trustee will,
except to the extent otherwise required by Section 2.10, deliver
a certificate of disposition thereof to the Issuer.
All Registered Securities presented for registration of
transfer, exchange, redemption or payment shall (if so required
by the Issuer or the Trustee) be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer in
form satisfactory to the Issuer and the Trustee duly executed by,
the Holder or his attorney-in-fact duly authorized in writing.
The Issuer 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 Issuer shall not be required to (a) issue, exchange
or register a transfer of any Securities of any series for a
period of 15 days next preceding the first mailing or publication
of notice of redemption of Securities of such series to be
redeemed, (b) exchange or register the transfer of 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 or (c) register the
transfer of or exchange any Security if the Holder thereof has
exercised his right, if any, to require the Issuer to repurchase
such Security, in whole or in part, except the portion of such
Security not required to be repurchased.
Notwithstanding any other provision of this Section,
unless and until it is exchanged in whole or in part for other
Securities of such series in definitive registered form, a
Registered Global 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 Registered Global Security 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
Registered Global Security or a nominee of such successor
Depositary.
If at any time a Depositary for any Registered
Securities of a series represented by one or more Registered
Global Securities notifies the Issuer that it is unwilling or
unable to continue as Depositary for such Registered Securities
or if at any time any such Depositary shall no longer be eligible
under Section 2.4, the Issuer shall appoint a successor
Depositary with respect to the Registered Securities held by such
Depositary. If a successor Depositary (which shall be eligible
under the last paragraph of Section 2.4) is not appointed by the
Issuer within 90 days after the Issuer receives such notice or
becomes aware of such ineligibility, the Registered Securities of
such series shall no longer be represented by one or more
Registered Global Securities held by such Depositary, and the
Issuer shall execute, and the Trustee, upon receipt of an Issuer
Order for the authentication and delivery of definitive
Securities of such series, shall authenticate and deliver
Securities of such series in definitive registered form without
Coupons, in any authorized denominations and in an aggregate
principal amount equal to the principal amount of the Registered
Global Security or Securities representing Registered Securities
of such series held by such Depositary in exchange for such
Registered Global Security or Securities.
Within seven days after the occurrence of an Event of
Default specified in clause (a), (b) or (c) of Section 5.1 with
respect to any series of Securities that is, in whole or in part,
represented by a Registered Global Security, the Issuer shall
execute, and the Trustee shall authenticate and deliver,
Securities of such series in definitive registered form without
Coupons, in any authorized denominations and in an aggregate
principal amount equal to the principal amount of the Registered
Global Security or Securities representing Registered Securities
of such series held by such Depositary in exchange for such
Registered Global Security or Securities.
The Issuer may at any time and in its sole discretion
determine that the Registered Securities of a particular series
shall no longer be represented by a Registered Global Security or
Securities. In such event, the Issuer shall execute, and the
Trustee, upon receipt of an Issuer Order for the authentication
and delivery of definitive Securities of such series, shall
authenticate and deliver, Securities of such series in definitive
registered form without Coupons, in any authorized denominations
and in an aggregate principal amount equal to the principal
amount of the Registered Global Security or Securities
representing Registered Securities of such series in exchange for
such Registered Global Security or Securities.
If so specified by the Issuer pursuant to Section 2.3
with respect to Securities of a particular series represented by
a Registered Global Security, the Depositary for such Registered
Global Security may surrender such Registered Global Security in
exchange in whole or in part for Securities of such series in
definitive registered form on such terms as are acceptable to the
Issuer and such Depositary. Thereupon, the Issuer shall execute,
and the Trustee shall authenticate and deliver:
(i) to each Person specified by such Depositary a new
Registered Security or Securities of such series without Coupons,
in any authorized denominations requested by such Person, in an
aggregate principal amount equal to, and in exchange for, such
Person's beneficial interest in the Registered Global Security;
and
(ii) to such Depositary a new Registered Global
Security in a denomination equal to the difference between the
principal amount of the surrendered Registered Global Security
and the aggregate principal amount of Registered Securities
authenticated and delivered pursuant to clause (i) above.
Upon the exchange of any Registered Global Security for
Securities in definitive registered form without Coupons, in
authorized denominations, such Registered Global Security shall
be cancelled by the Trustee or an agent of the Issuer or the
Trustee. Securities in definitive registered form without
Coupons issued in exchange for a Registered Global Security
pursuant to this Section shall be registered in such names and in
such authorized denominations as the Depositary for such
Registered Global Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the
Trustee or an agent of the Issuer or the Trustee. The Trustee or
such agent 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
Issuer, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon
such registration of transfer or exchange.
Notwithstanding anything herein or in the terms of any
series of Securities to the contrary, none of the Issuer, the
Trustee or any agent of the Issuer or the Trustee (any of which,
other than the Issuer, may rely on an Officers' Certificate and
an Opinion of Counsel) shall be required to exchange any
Unregistered Security for a Registered Security if such exchange
would result in adverse federal income tax consequences to the
Issuer (such as, for example, the inability of the Issuer to
deduct from its income, as computed for federal income tax
purposes, the interest payable on the Unregistered Securities)
under then applicable United States federal income tax laws.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and
Stolen Securities. In case any temporary or definitive Security
or any Coupon appertaining to any Security shall become mutilated
or defaced or be destroyed, lost or stolen, the Issuer shall
execute, and upon receipt of an Issuer Order, 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 the absence of notice to the Issuer or
the Trustee that the Security or Coupon has been acquired by a
holder in due course or bona fide purchaser in lieu of and in
substitution for the Security so destroyed, lost or stolen, with
Coupons corresponding to the Coupons appertaining to the
Securities so mutilated, defaced, destroyed, lost or stolen, or
in exchange or substitution for the Security to which such
mutilated, defaced, destroyed, lost or stolen Coupon appertained,
with Coupons appertaining thereto corresponding to the Coupons so
mutilated, defaced, destroyed, lost or stolen. In every case the
applicant for a substitute Security or Coupon shall furnish to
the Issuer and to the Trustee and any agent of the Issuer 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
or Coupon and of the ownership thereof and, in the case of
mutilation or defacement, shall surrender the Security and
related Coupons to the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon,
the Issuer 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 or its agent) connected therewith. In
case any Security or Coupon 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 Issuer
may, instead of issuing a new or substitute Security, pay or
authorize the payment of the same or the relevant Coupon (without
surrender thereof except in the case of a mutilated or defaced
Security or Coupon), if the applicant for such payment shall
furnish to the Issuer and to the Trustee and any agent of the
Issuer or the Trustee such security or indemnity as may be
required by them to save each of them harmless, and, in every
case of destruction, loss or theft, evidence to their
satisfaction of the destruction, loss or theft of such Security
or Coupon and of the ownership thereof and, in the case of
mutilation or defacement, shall surrender the Security and
related Coupons to the Trustee or such agent.
Every substitute Security or Coupon of any series
issued pursuant to the provisions of this Section by virtue of
the fact that any such Security or Coupon is destroyed, lost or
stolen shall constitute an additional contractual obligation of
the Issuer, whether or not the destroyed, lost or stolen Security
or Coupon 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 forth in) this Indenture equally and
proportionately with any and all other Securities or Coupons of
such series duly authenticated and delivered hereunder. All
Securities and Coupons 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, destroyed, lost or stolen
Securities and Coupons 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 Cancellation of Securities; Disposition
Thereof. All Securities and Coupons 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 Issuer or any agent of the Issuer or any agent
of the Trustee, shall be delivered to the Trustee or its agent
for cancellation or, if surrendered to the Trustee, shall be
cancelled by it; and no Securities or Coupons shall be issued in
lieu thereof except as expressly permitted by any of the
provisions of this Indenture. The Trustee or its agent shall
dispose of cancelled Securities and Coupons held by it (subject
to the record retention requirements of the Exchange Act and any
other applicable requirements) and deliver a certificate of
disposition to the Issuer unless, by an Issuer Order, the Issuer
shall direct that cancelled Securities be returned to it. If the
Issuer or its agent shall acquire any of the Securities or
Coupons, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities
or Coupons unless and until the same are delivered to the Trustee
or its agent for cancellation. Notwithstanding any other
provision of this Indenture to the contrary, in the case of
Securities of a series all of the Securities of which are not to
be originally issued at one time, a Security of such series shall
not be deemed to have been outstanding at any time hereunder if
and to the extent that subsequent to the authentication and
delivery thereof such Security is delivered to the Trustee for
cancellation by the Issuer or any agent thereof upon the failure
of the original purchaser thereof to make payment against
delivery thereof, and any Security so delivered to the Trustee
shall be promptly canceled by the Trustee.
SECTION 2.11 Temporary Securities. Pending the
preparation of definitive Securities for any series, the Issuer
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
reasonably satisfactory to the Trustee). Temporary Securities of
any series shall be issuable as Registered Securities without
Coupons, or as Unregistered Securities with or without Coupons
attached thereto, 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 Issuer with the concurrence of the Trustee as evidence by
the execution and authentication thereof. Temporary Securities
may contain such references to any provisions of this Indenture
as may be appropriate. Any such temporary Securities may be in
global form, representing such of the Outstanding Securities of
such series as shall be specified therein. Every temporary
Security shall be executed by the Issuer 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 Issuer shall execute and shall
furnish definitive Securities of such series and thereupon
temporary Registered Securities of such series may be surrendered
in exchange for such definitive Securities in registered form
without charge at each office or agency to be maintained for such
purpose in accordance with Section 3.2 and, in the case of
Unregistered Securities, at any office or agency to be maintained
for such purpose as specified pursuant to Section 2.3, 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 in authorized
denominations and, in the case of Unregistered Securities, having
attached thereto any appropriate Coupons. Until so exchanged,
the temporary Securities of any series shall be entitled to the
same benefits under this Indenture as definitive Securities of
such series, unless otherwise established pursuant to Section
2.3. The provisions of this Section are subject to any
restrictions or limitations on the issue and delivery of
temporary Unregistered Securities of any series that may be
established pursuant to Section 2.3 (including any provision that
Unregistered Securities of such series initially be issued in the
form of a single global Unregistered Security to be delivered to
a depositary or agency located outside the United States and the
procedures pursuant to which definitive Unregistered Securities
of such series would be issued in exchange for such temporary
global Unregistered Security).
SECTION 2.12 CUSIP Numbers. The Issuer in issuing
the Securities of any series may use "CUSIP" numbers (if then
generally in use) and, if so, the Trustee shall use "CUSIP"
numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on
the Securities or as contained in any notice of a redemption and
that reliance may be placed only on the other identification
numbers printed on the Securities. Any redemption of Securities
shall not be affected by any defect in or omission of "CUSIP"
numbers.
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The
Issuer covenants and agrees for the benefit of each series of
Securities that it will (i) duly and punctually pay or cause to
be paid in the currency or units based on or relating to foreign
currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 2.3 for the
Securities of such series) the principal of and interest, if any,
on each of the Securities of such series (together with any
additional amounts payable pursuant to the terms of such
Securities) at the place or places, at the respective times and
in the manner provided in such Securities and in the Coupons, if
any, appertaining thereto and in this Indenture and any
applicable Board Resolution, Officers' Certificate or
supplemental indenture; and (ii) comply with all other terms,
agreements and conditions contained in each series of Securities
or made in this Indenture or in any applicable Board Resolution,
Officers' Certificate or supplemental indenture for the benefit
of such series of Securities. Unless otherwise provided herein,
or pursuant to Section 2.3 for the Securities of any series, the
principal of and interest, if any, on the Securities of each
series shall be payable at the office or agency maintained for
such purpose under Section 3.2 hereof. The interest on
Securities with Coupons attached shall be payable only upon
presentation and surrender of the several Coupons for such
interest installments as are evidenced thereby as they severally
mature. If any temporary Unregistered Security provides that
interest thereon may be paid while in temporary form, the
interest on any such temporary Unregistered Security (together
with any additional amounts payable pursuant to the terms of such
Security) shall be paid, as to the installments of interest
evidenced by Coupons attached thereto, if any, only upon
presentation and surrender thereof, and, as to the other
installments of interest, if any, only upon presentation of such
temporary Unregistered Security for notation thereon of the
payment of such interest, in each case subject to any
restrictions that may be established pursuant to Section 2.3.
The interest on any definitive Unregistered Security issued
without Coupons (together with any additional amounts payable
pursuant to the terms of such Security) shall be payable only
upon presentation of such Security for notation thereon of the
payment of such interest or amount, in each case subject to any
restrictions that may be established pursuant to Section 2.3.
The interest on Registered Securities (together with any
additional amounts payable pursuant to the terms of such
Securities) shall be payable only to or upon the written order
of the Holders thereof and, at the option of the Issuer (unless
otherwise specified in any applicable Board Resolution, Officers'
Certificate or supplemental indenture), may be paid by wire
transfer to an account maintained by a Holder specified in the
Security Register (upon receipt of appropriate instructions from
such Holder) or by mailing checks for such interest payable to or
upon the written order of such Holders at their last addresses as
they appear on the Security Register.
Principal and interest shall be considered paid on the
date due if on such date the Trustee or the paying agent holds in
accordance with this Indenture money sufficient to pay all
principal and interest then due and the Trustee or the paying
agent, as the case may be, is not prohibited pursuant to the
terms of this Indenture from paying such money to the
Securityholders on that date.
SECTION 3.2. Offices for Payments, etc. Unless
otherwise provided pursuant to Section 2.3 with respect to the
Securities of any series, the Issuer will maintain in the Borough
of Manhattan, The City of New York, an office or agency where the
Registered Securities of each series may be presented for
payment, where the Securities of each series may be presented for
exchange as in this Indenture provided and where the Registered
Securities of each series may be presented for registration of
transfer as in this Indenture provided. The Issuer hereby
initially appoints the office of the Trustee at The First
National Bank of Chicago, c/o First Chicago Trust Company of New
York, 14 Wall Street - 8th Floor, New York, New York 10005,
Attention: Corporate Trust Administration, as its office or
agency for each of the foregoing purposes.
In the event that the Issuer shall issue any
Unregistered Securities, it will maintain one or more offices or
agencies in a city or cities located outside the United States
(including any city in which such an office or agency is required
to be maintained under the rules of any stock exchange or
interdealer quotation system on which the Securities of such
series are listed) where the Unregistered Securities, if any, of
each series and Coupons, if any, appertaining thereto may be
presented for payment. No payment on any Unregistered Security
or Coupon, if any, appertaining thereto, will be made upon
presentation of such Unregistered Security or Coupon at an office
or agency of the Issuer within the United States, nor will any
payment be made by transfer to an account in, or by mail to an
address in, the United States unless pursuant to applicable
United States laws and regulations then in effect such payment
can be made without adverse tax consequences to the Issuer.
Notwithstanding the foregoing, payments in Dollars on
Unregistered Securities of any series and Coupons, if any,
appertaining thereto which are payable in Dollars may be made at
an office or agency of the Issuer maintained in the Borough of
Manhattan, The City of New York, if such payment in Dollars at
each office or agency maintained by the Issuer outside the United
States for payment on such Unregistered Securities is illegal or
effectively precluded by exchange controls or other similar
restrictions.
Unless otherwise provided pursuant to Section 2.3 with
respect to the Securities of any series, the Issuer will maintain
in the Borough of Manhattan, The City of New York, an office or
agency where notices and demands to or upon the Issuer in respect
of the Securities of any series, the Coupons appertaining thereto
or this Indenture may be served. The Issuer hereby initially
appoints the office of the Trustee at The First National Bank of
Chicago, c/o First Chicago Trust Company, 14 Wall Street - 8th
Floor, New York, New York 10005, Attention: Corporate Trust
Administration, as its office or agency where notices and demands
to or upon the Issuer in respect of the Securities or this
Indenture may be served.
The Issuer will give to the Trustee written notice of
the location of each office or agency referred to in this Section
and of any change of location thereof. In case the Issuer shall
fail to maintain any office or agency required by this Section to
be located in the Borough of Manhattan, The City of New York, or
shall fail to give such notice of the location or of any change
in the location of any of the above offices or agencies,
presentations (to the extent permitted by law) and demands may be
made and notices may be served at the Corporate Trust Office of
the Trustee, and the Issuer hereby appoints the same as its agent
to receive such presentations, notices and demands.
The Issuer may from time to time designate one or more
additional offices or agencies where the Securities of any series
and any Coupons appertaining thereto may be presented for
payment, where the Securities of such series may be presented for
exchange as in this Indenture provided and where the Registered
Securities of such series may be presented for registration of
transfer as in this Indenture provided, and the Issuer may from
time to time rescind any such designation, as the Issuer may deem
desirable or expedient; provided, however, that no such
designation or rescission shall in any manner relieve the Issuer
of its obligation to maintain any office or agency required to be
provided for in this Section. The Issuer hereby initially
appoints the office of the Trustee set forth in Section 11.4 as
such an additional office. The Issuer will give to the Trustee
prompt written notice of any such designation or rescission
thereof.
SECTION 3.3 Appointment to Fill a Vacancy in Office
of Trustee. The Issuer, whenever necessary to avoid or fill a
vacancy in the office of Trustee, will appoint, in the manner
provided in Section 6.10, a Trustee, so that there shall at all
times be a Trustee with respect to each series of Securities
hereunder.
SECTION 3.4 Paying Agents. Whenever the Issuer shall
appoint a paying agent other than the Trustee with respect to the
Securities of any series, it will cause such paying agent to
execute and deliver to the Trustee an instrument in which such
agent shall agree with the Trustee, subject to the provisions of
this Section:
(a) that it will hold all sums received by it as such
agent for the payment of the principal of or interest on the
Securities of such series (whether such sums have been paid to it
by the Issuer or by any other obligor on the Securities of such
series) in trust for the benefit of the Holders of the Securities
of such series and the Coupons appertaining thereto, if any, or
of the Trustee until such sums have been paid to such Holders or
otherwise disposed of as herein provided;
(b) that it will give the Trustee notice of any
failure by the Issuer (or by any other obligor on the Securities
of such series) to make any payment of the principal of or
interest on the Securities of such series when the same shall be
due and payable; and
(c) that at any time during the continuance of any
such failure referred to in the foregoing paragraph (b), it will
upon written request of the Trustee forthwith pay to the Trustee
all sums so held in trust by such agent.
The Issuer will, on or prior to each due date of the
principal of or interest on the Securities of any series, deposit
with the paying agent a sum sufficient in the currency or
currency unit in which such payment is to be made to pay such
principal or interest so becoming due, such sums to be held in
trust for the benefit of the persons entitled thereto and (unless
such paying agent is the Trustee) the Issuer will promptly notify
the Trustee of any failure to take such action.
If the Issuer shall act as its own paying agent with
respect to the Securities of any series, it will, notwithstanding
any other provision of this Indenture, on or before each due date
of the principal of or interest on the Securities of such series,
set aside, segregate and hold in trust for the benefit of the
Holders of the Securities of such series or the Coupons, if any,
appertaining thereto a sum in the currency or currency unit in
which such payment is to be made sufficient to pay such principal
or interest so becoming due until such sums have been paid to
such Holders or otherwise disposed of as herein provided. The
Issuer will promptly notify the Trustee of any failure to take
such action.
Anything in this Section to the contrary
notwithstanding, but subject to Section 10.1, the Issuer may at
any time, for the purpose of obtaining a satisfaction and
discharge with respect to one or more or all series of Securities
hereunder, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust for any such series by the
Issuer or any paying agent hereunder, as required by this
Section, such sums to be held by the Trustee upon the trusts
herein contained.
Anything in this Section to the contrary
notwithstanding, the agreement to hold sums in trust as provided
in this Section is subject to the provisions of Sections 10.3 and
10.4.
SECTION 3.5 Corporate Existence and Power. The
Issuer will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate
existence, power and authority (except as permitted by Section
9.1 hereof).
SECTION 3.6 Limitation on Liens on Stock of Restricted
Subsidiaries. The Issuer will not, nor will it permit any
Restricted Subsidiary to, issue, assume or guarantee any
indebtedness for borrowed money (hereinafter referred to as
"Debt") secured by a security interest, pledge, lien or other
encumbrance upon any shares of Capital Stock of any Restricted
Subsidiary without effectively providing that the Debt Securities
(together with, if the Issuer shall so determine, any other
indebtedness of or guarantee by the Issuer or any Restricted
Subsidiary ranking senior to or equally with the Debt Securities
and then existing or thereafter created) shall be secured equally
and ratably with such Debt.
SECTION 3.7 Limitation on Issuance or Disposition of
Stock of Restricted Subsidiaries. The Issuer will not, nor will
it permit any Restricted Subsidiary to, issue, sell, assign,
transfer or otherwise dispose of, directly or indirectly, any
Capital Stock (other than nonvoting preferred stock) of any
Restricted Subsidiary, except for (i) the purpose of qualifying
directors; (ii) sales or other dispositions to the Issuer or one
or more Restricted Subsidiaries; (iii) the disposition of all or
any part of the Capital Stock of any Restricted Subsidiary for
consideration which is at least equal to the fair value of such
Capital Stock as determined by the Board of Directors (acting in
good faith); or (iv) an issuance, sale, assignment, transfer or
other disposition required to comply with an order of a court or
regulatory authority of competent jurisdiction, other than an
order issued at the request of the Issuer or any Restricted
Subsidiary.
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Names and
Addresses of Securityholders. The Issuer and any other obligor
on the Securities covenant and agree that they will furnish or
cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require containing all information in the
possession or control of the Issuer and such obligor, or any
paying agents or Securities Registrar, as to the names and
addresses of the Holders of the Registered Securities of each
series:
(a) semi-annually and not more than 15 days after each
Record Date for the payment of interest on such Registered
Securities, as of such Record Date and on dates to be determined
pursuant to Section 2.3 for non-interest bearing Registered
Securities, in each year, and
(b) at such other times as the Trustee may request in
writing, within 30 days after receipt by the Issuer of any such
request, as of a date not more than 15 days prior to the time
such information is furnished,
provided that if and so long as the Trustee shall be the Security
Registrar for such series and all of the Securities of such
series are Registered Securities, such list shall not be required
to be furnished with respect to such series.
SECTION 4.2 Preservation and Disclosure of
Securityholders Lists. (a) The Trustee shall
preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the Holders of each
series of Registered Securities (i) contained in the most recent
list furnished to it as provided in Section 4.1, (ii) received by
it in the capacity of Security Registrar for such series, if so
acting, and (iii) filed with it within the two preceding years
pursuant to Section 4.4(c)(ii). The Trustee may destroy any list
furnished to it as provided in Section 4.1 upon receipt of a new
list so furnished.
(b) In case three or more Holders of Securities
(hereinafter referred to as "applicants") apply in writing to the
Trustee and furnish to the Trustee reasonable proof that each
such applicant has owned a Security 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 such application 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, or
(ii) inform such applicants as to the approximate
number of Holders of Registered Securities of such series or of
all Registered Securities, as the case may be, whose names and
addresses appear in the information preserved at the time by the
Trustee, in accordance with the provisions of subsection (a) of
this Section and as to the approximate cost of mailing to such
Holders the form of proxy or other communication, if any,
specified in such application.
If the Trustee shall elect not to afford to such
applicants access to such information, the Trustee shall, upon
the written request of such applicants, mail to each Holder of
such series or all Holders of Registered 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 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 Commission, together with a copy of
the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be
contrary to the best interests of the Holders of Registered
Securities of such series or of all Registered Securities, as the
case may be, or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If
the 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, the Commission shall find, after notice and
opportunity for hearing, that all the objections so sustained
have been met, and shall enter an order so declaring, the Trustee
shall mail copies of such material to all such Holders with
reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved
of any obligations or duty to such applicants respecting their
application.
(c) Each and every Holder of Securities and Coupons,
by receiving and holding the same, agrees with the Issuer and the
Trustee that neither the Issuer nor the Trustee nor any agent of
the Issuer or the Trustee shall be held accountable by reason of
the disclosure of any such information as to the names and
addresses of the Holders of Securities in accordance with the
provisions of subsection (b) of this Section, regardless of the
source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under such subsection (b).
(d) The Issuer shall upon written request to the
Trustee (or, if applicable, the Security Registrar) be entitled
to receive a list of the Holders of any and all series of
Registered Securities.
SECTION 4.3 Reports by the Issuer. The Issuer
covenants:
(a) to file with the Trustee, within 15 days after the
Issuer is required to file the same with the Commission, copies
of the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe) which the Issuer may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act; or if the Issuer is not required to file
information, documents or reports pursuant to either of such
Sections, then to file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant
to Section 13 of the Exchange Act in respect of a debt security
listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to
time by the Commission, such additional information, documents
and reports with respect to compliance by the Issuer with the
conditions and covenants provided for in this Indenture as may be
required from time to time by such rules and regulations;
(c) to transmit by mail to the Holders of Securities
within 30 days after the filing thereof with the Trustee, in the
manner and to the extent provided in Section 4.4(c), such
summaries of any information, documents and reports required to
be filed by the Issuer pursuant to subsections (a) and (b) of
this Section as may be required to be transmitted to such Holders
by rules and regulations prescribed from time to time by the
Commission; and
(d) to furnish to the Trustee, within 120 days after
the end of each fiscal year (beginning in 1995), a certificate
(which need not comply with Section 11.5) from its principal
executive officer, principal financial officer or principal
accounting officer stating whether or not to the best knowledge
of the signer thereof, after a review of the activities of the
Issuer during such fiscal year and performance under this
Indenture has been made under such signer's supervision, the
Issuer is in compliance (without regard to periods of grace or
notice requirements) with all conditions and covenants under this
Indenture, and if the Issuer shall not be in compliance,
specifying such non-compliance and the nature and status thereof
as to which such signer may have knowledge.
SECTION 4.4 Reports by the Trustee. (a) Within 60
days after May 15 of each year, commencing with the year 1995,
the Trustee shall transmit by mail to the Holders of the
Securities of each series, in the manner and to the extent
provided in subsection (c) of this Section, a brief report dated
as of such May 15 with respect to any of the following events
that may have occurred within the last 12 months (but if no such
event has occurred within such period, no report need be
transmitted):
(i) any change to its eligibility under Section 6.9
and its qualification under Section 6.8;
(ii) the creation of, or any material change to, a
relationship specified in subsection (i) through (x) of Section
6.8(c);
(iii) the character and amount of any advances (and if
the Trustee elects so to state, the circumstances surrounding the
making thereof) made by the Trustee (as such) which remain unpaid
on the date of such report and for the reimbursement of which it
claims or may claim a lien or charge, prior to that of the
Securities of such series, on any property or funds held or
collected by it as Trustee, except that the Trustee shall not be
required (but may elect) to report such advances if such advances
so remaining unpaid aggregate not more than 1/2 of 1% of the
principal amount of the Securities of all series Outstanding on
the date of such report for which the Trustee serves in the
capacity as trustee hereunder;
(iv) any change to the amount, interest rate and
maturity date of all other indebtedness owing by the Issuer (or
by any other obligor on the Securities) to the Trustee in its
individual capacity on the date of such report, with a brief
description of any property held as collateral security therefor,
except any indebtedness based upon a creditor relationship
arising in any manner described in Section 6.13(b)(2), (3), (4)
or (6);
(v) any change to the property and funds, if any,
physically in the possession of the Trustee (as such) on the date
of such report;
(vi) any additional issue of Securities which the
Trustee has not previously reported; and
(vii) any action taken by the Trustee in the
performance of its duties under this Indenture which it has not
previously reported and which in its opinion materially affects
the Securities of such series, except action in respect of a
default, notice of which has been or is to be withheld by it in
accordance with the provisions of Section 5.11.
(b) The Trustee shall transmit to the Holders of each
series, in the manner and to the extent provided in subsection
(c) of this Section, a brief report with respect to the character
and amount of any advances (and if the Trustee elects so to
state, the circumstances surrounding the making thereof) made by
the Trustee, as such, since the date of the last report
transmitted pursuant to the provisions of subsection (a) of this
Section (or if no such report has yet been so transmitted, since
the date of this Indenture) for the reimbursement of which it
claims or may claim a lien or charge, prior to that of the
Securities of such series, on property or funds held or collected
by it as Trustee and which it has not previously reported
pursuant to this subsection (b), except that the Trustee shall
not be required (but may elect) to report such advances if such
advances remaining unpaid at any time aggregate 10% or less of
the principal amount of the Securities of all series Outstanding
at such time for which the Trustee serves in the capacity as
trustee hereunder, such report to be transmitted within 90 days
after such time.
(c) Reports pursuant to this Section shall be
transmitted by mail:
(i) to all Holders of Registered Securities, as the
names and addresses of such Holders appear upon the Security
Register;
(ii) to such other Holders of Securities as have,
within two years preceding such transmission, filed their names
and addresses with the Trustee for that purpose; and
(iii) except in the case of reports pursuant to
subsection (b), to each Holder of a Security whose name and
address are preserved at the time by the Trustee as provided in
Section 4.2(a).
(d) A copy of each such report shall, at the time of
such transmission to the Holders, be furnished to the Issuer and
be filed by the Trustee with each securities exchange, if any,
upon which the Securities of any series are listed and also with
the Commission. The Issuer agrees to notify the Trustee when and
as the Securities of such series become admitted to trading on
any national securities exchange.
SECTION 4.5 Publication of Certain Notices. In the
event of the publication of any notice pursuant to Section 5.11,
6.8, 6.10(a), 6.11, 6.14, 8.2, 10.4, 12.2 or 12.5, the party
making such publication shall also, to the extent that notice is
required to be given to Holders of Securities of any series by
applicable law or securities exchange regulation, as evidenced by
an Officers' Certificate delivered to such party, make a similar
publication in the place or places so required thereby.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of
Maturity; Waiver of Default. Unless otherwise specified for a
particular series of Securities pursuant to Section 2.3, the term
"Event of Default" with respect to Securities of any series,
wherever used herein, means each 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 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 30 days; or
(b) default in the payment of all or any part of the
principal of any of the Securities of such series as and when
the same shall become due and payable, whether at maturity, upon
any redemption, by declaration of acceleration or otherwise; or
(c) default in the deposit of any sinking fund or
analogous payment for the benefit of the Securities of such
series as and when the same shall become due and payable; or
(d) failure on the part of the Issuer to duly observe
or perform any other of the covenants or agreements on the part
of the Issuer contained in the Securities of such series,
applicable Board Resolution, Officers' Certificate or
supplemental indenture or in this Indenture (other than a
covenant or agreement expressly included herein solely for the
benefit of Securities of one or more other series) for a period
of 60 days (other than a covenant or agreement default which is
specifically designated herein or therein as having a different
time period) after the date on which written notice specifying
such failure, stating that such notice is a "Notice of Default"
hereunder and demanding that the Issuer remedy the same, shall
have been given (i) (A) in person to the chairman of the board,
the president, or the treasurer of the Issuer promptly followed
by notice by registered or certified mail, return receipt
requested, by the Trustee, or (B) by registered or certified
mail, return receipt requested, to the Issuer by the Trustee, or
(ii) by registered or certified mail, return receipt requested,
to the Issuer and the Trustee by the Holders of not less than 25%
in aggregate principal amount of the Outstanding Securities of
such series; or
(e) (i) a default occurs under any instrument
(including this Indenture) under which there is at the time
outstanding, or by which there may be secured or evidenced, any
indebtedness of the Issuer or a Restricted Subsidiary for money
borrowed by the Issuer or a Restricted Subsidiary (other than non-
recourse indebtedness) which results in acceleration (whether by
declaration or automatically) or the nonpayment at maturity
(after giving effect to any applicable grace period) of such
indebtedness in an aggregate amount exceeding $15,000,000; or any
such indebtedness shall otherwise be declared to be due and
payable, or required to be prepaid (other than by a regularly
scheduled required prepayment or exercise of an optional
prepayment right), prior to the stated maturity thereof; or
failure on the part of the Issuer or any Restricted Subsidiary to
make any payment under a guarantee in respect of any indebtedness
(except up to $26,311,000 aggregate principal amount of 8.70%
Guaranteed Notes issued by Walnut Mall Limited Partnership, due
August 19, 1996 and any accrued interest or premium with respect
thereto), in each case in an amount of at least $15,000,000, on
the date such payment is due (or within any grace period
specified in the agreement or other instrument governing such
indebtedness); in which case the Issuer shall immediately give
notice to the Trustee of such acceleration or non-payment and
(ii) there shall have been a failure to cure such default or to
pay or discharge all such defaulted indebtedness within 10 days
after notice thereof to the Issuer by the Trustee or to the
Issuer and the Trustee by the Holders of at least 25% in
principal amount of such series of the Securities then
Outstanding and such acceleration shall not be rescinded or
annulled prior to expiration of such 10 day period; or
(f) any final non-appealable judgment or order for the
payment of money in excess of $15,000,000 shall be rendered
against the Issuer or any Restricted Subsidiary and such judgment
or order has not been satisfied by payment thereof or bonded and
either (i) enforcement proceedings shall have been commenced by
any creditor upon such judgment or order or (ii) there shall be
any period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect provided, however,
that a judgment or order fully covered by insurance (or a
judgment or order for the payment of money covered by insurance
to the extent of all payments in excess of $15,000,000), which
coverage has not been disputed by the issuer, shall not be
considered a default or an Event of Default; or
(g) a court having jurisdiction in the premises shall
enter a decree or order for relief in respect of the Issuer in an
involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Issuer or for any
substantial part of the property of the Issuer, or ordering the
winding up or liquidation of the affairs of the Issuer, and such
decree or order shall remain unstayed and in effect for a period
of 90 consecutive days; or
(h) the Issuer shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for
relief in an involuntary case under any such law, or consent to
the appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee or sequestrator or similar official
(other than a custodian pursuant to 8 Delaware Code 226 or any
similar statute under other state laws) of the Issuer or for any
substantial part of the property of the Issuer, or make any
general assignment for the benefit of creditors; or
(i) any other Event of Default provided in or pursuant
to the Board Resolution, Officers' Certificate or supplemental
indenture establishing the terms of such series of Securities as
provided in Section 2.3.
If an Event of Default described in clause (a), (b), (c), (d),
(e), (f) or (i) shall have occurred and be continuing with
respect to the Securities of any series, 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 25% in aggregate
principal amount of the Securities of such series then
Outstanding, by notice in writing to the Issuer (and to the
Trustee if given by such Holders), may declare the entire
principal (or if the Securities of such series are Original Issue
Discount Securities, such portion of the stated principal amount
thereof as may be specified in or pursuant to the terms of such
series) of all the Securities of such series then Outstanding and
the interest accrued thereon, if any, and all other amounts owing
thereon 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 (g) or (h) shall have
occurred and be continuing, the principal (or if the Securities
of such series are Original Issue Discount Securities, such
portion of the stated principal amount thereof as may be
specified in or pursuant to the terms of such series) and any
interest accrued and all other amounts owing on all the
Securities then Outstanding shall thereby become and be
immediately due and payable without any declaration or other act
on the part of the Trustee or any Securityholders.
The foregoing paragraph, however, is subject to the
condition that if, at any time after the principal of the
Securities of any series (or if the Securities of such series are
Original Issue Discount Securities, such portion of the principal
as may be specified in the terms of such series) shall have been
so declared due and payable, and before any judgment or decree
for the payment of the moneys due shall have been obtained or
entered as hereinafter provided, the Issuer shall pay or shall
deposit with the Trustee a sum sufficient to pay in the
applicable currency or currency unit all matured installments of
interest upon all the Securities of such series and the principal
of all Securities of such series 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, on overdue installments of interest at the
same rate as the rate of interest (or Yield to Maturity, in the
case of Original Issue Discount Securities) specified in the
Securities of such series, to the date of such payment or
deposit) and such amount as shall be sufficient to cover the
costs and expenses of collection, including reasonable
compensation to the Trustee, its agents, attorneys and counsel,
and any reasonable expenses and liabilities incurred, and all
reasonable advances made, by the Trustee except as a result of
its negligence or bad faith, and if any and all Events of Default
under this Indenture with respect to such series, other than the
non-payment of the principal of Securities of such series which
shall have become due by acceleration, shall have been cured,
waived or otherwise remedied as provided herein--then, and in
every such case, the Holders of a majority in aggregate principal
amount of all the Securities of such series then Outstanding, by
written notice to the Issuer and to the Trustee, may waive all
defaults with respect to such series 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.
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 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 5.2 Collection of Indebtedness by Trustee;
Trustee May Prove Debt. The Issuer covenants that (a) in case
default shall be made in the payment of any installment of
interest on any of the Securities of any series when such
interest shall have become due and payable, and such default
shall have continued for a period of 30 days, or (b) in case
default shall be made in the payment of all or any part of the
principal of any of the Securities of any series when the same
shall have become due and payable, whether at maturity, upon
redemption, by declaration or otherwise -- and any such default
continues for any period of grace provided for such default with
respect to the Securities of such series then, upon demand of the
Trustee, the Issuer will pay to the Trustee for the benefit of
the Holders of the Securities of such series the whole amount
that then shall have become due and payable on all Securities of
such series, including all Coupons, for principal or interest, as
the case may be (with interest to the date of such payment upon
the overdue principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue
installments of interest at the same rate as the rate of interest
(or Yield to Maturity, in the case of Original Issue Discount
Securities) specified in the Securities of such series); and in
addition thereto, such amount as shall be sufficient to cover the
costs and expenses of collection, including reasonable
compensation to the Trustee, its agents, attorneys and counsel,
and any reasonable expenses and liabilities incurred, and all
reasonable advances made, by the Trustee except as a result of
its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer
may pay the principal of and interest on the Securities of such
series to the Holders, whether or not the Securities of such
series be overdue.
In case the Issuer shall fail forthwith to pay such
amounts upon such demand, the Trustee, in its own name and as
trustee of an express trust, shall be entitled and empowered to
institute any action or proceedings at law or in equity for the
collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Issuer or
other obligor upon the Securities of such series and collect in
the manner provided by law out of the property of the Issuer or
other obligor upon the Securities of such series, wherever
situated, the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to
the Issuer or any other obligor upon the Securities of any series
under Title 11 of the United States Code or any other applicable
federal or state bankruptcy, insolvency or other similar law, or
in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official
shall have been appointed for or taken possession of the Issuer
or its property or such other obligor, or in case of any other
comparable judicial proceedings relative to the Issuer or such
other obligor, or to the creditors or property of the Issuer or
such other obligor, the Trustee, irrespective of whether the
principal of the Securities of such series shall then be due and
payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section, shall be entitled and
empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole
amount of the principal and any interest (or, if the Securities
of such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms
of such series) owing and unpaid in respect of the Securities of
such series, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the costs of collection, including
reasonable compensation to the Trustee and its agents, attorneys
and counsel, and for reimbursement of any reasonable expenses and
liabilities incurred, and all reasonable advances made, by the
Trustee, except as a result of its negligence or bad faith) and
of the Holders of the Securities of such series allowed in any
judicial proceedings relative to the Issuer or such other
obligor, or to the creditors or property of the Issuer or such
other obligor,
(b) unless prohibited by applicable law and
regulations, to vote on behalf of the Holders of the Securities
of such series in any election of a trustee or a standby trustee
in arrangement, reorganization, liquidation or other bankruptcy
or insolvency proceedings or person performing similar functions
in comparable proceedings, and
(c) to collect and receive any moneys or other
property payable or deliverable on any such claims, and to
distribute all amounts received with respect to the claims of the
Holders of the Securities of such series and of the Trustee on
their behalf;
and any trustee, receiver, liquidator, custodian or other similar
official is hereby authorized by each of the Securityholders to
make payments to the Trustee, and, in the event that the Trustee
shall consent to the making of payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be
sufficient to cover the costs of collection, including reasonable
compensation to the Trustee, and its agents, attorneys and
counsel, and any other reasonable expenses and liabilities
incurred, and all reasonable advances made, by the Trustee,
except as a result of its negligence or bad faith.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or vote for or accept or
adopt on behalf of any 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
Holder in any such proceeding except, as aforesaid, to vote for
the election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities of any series or
Coupons appertaining thereto, may be enforced by the Trustee
without the possession of any of the Securities of such series or
Coupons appertaining thereto or the production thereof at any
trial or other proceedings relating thereto, and any such action
or proceedings instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of
judgment, subject to the payment of the costs of collection,
including reasonable expenses, disbursements and compensation of
the Trustee and its agents, attorneys and counsel, shall be for
the ratable benefit of the Holders of the Securities of such
series or the Coupons appertaining to such Securities in respect
of which such judgment has been recovered.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation 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 (or
relevant series thereof) and Coupons appertaining thereto in
respect to which action was taken, and it shall not be necessary
to make any Holders of such Securities (or series thereof) or
Coupons parties to any such proceedings.
SECTION 5.3 Application of Proceeds. Any moneys
collected by the Trustee pursuant to this Article in respect of
the Securities of any series shall be applied in the following
order at the date or dates fixed by the Trustee and, in case of
the distribution of such moneys on account of principal or any
interest, upon presentation of the Securities of such series and
Coupons, if any, appertaining thereto in respect of which moneys
have been collected and stamping (or otherwise noting) thereon
the payment, or issuing Securities of the same series in reduced
principal amounts and appropriate Coupons in exchange for the
presented Securities and Coupons if only partially paid, or upon
surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of
collection applicable to Securities of such series, including
reasonable compensation to the Trustee and its agents, attorneys
and counsel, and of any reasonable expenses and liabilities
incurred, and all reasonable advances made, by the Trustee except
as a result of its negligence or bad faith;
SECOND: In case the principal of the Securities of
such series in respect of which moneys have been collected shall
not have become and be then due and payable, to the payment of
interest on the Securities of such series in default in the order
of the maturity of the installments of such interest, with
interest (to the extent that such interest has been collected by
the Trustee) upon the overdue installments of interest at the
same rate as the rate of interest (or Yield to Maturity, in the
case of Original Issue Discount Securities) specified in such
Securities, such payments to be made ratably to the Persons
entitled thereto, without discrimination or preference, to the
aggregate of such accrued and unpaid interest;
THIRD: In case the principal of the Securities of
such series in respect of which moneys have been collected shall
have become and be then due and payable, to the payment of the
whole amount then owing and unpaid upon all the Securities of
such series for principal and interest, with interest upon (to
the extent such interest has been collected by the Trustee) the
overdue principal and (to the extent that such interest has been
collected by the Trustee and to the extent the payment of such
interest is enforceable under applicable laws) upon overdue
installments of interest at the same rate as the rate of interest
(or Yield to Maturity, in the case of Original Issue Discount
Securities) specified 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 unless otherwise provided
pursuant to Section 2.3 for such series, ratably to the Persons
entitled thereto without discrimination or preference, to the
aggregate of such principal and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to
the Issuer or any other Person lawfully entitled thereto.
SECTION 5.4 Suits for Enforcement. In case an Event
of Default with respect to the Securities of any series has
occurred, has not been waived and is continuing, the Trustee may
in its discretion proceed to protect and enforce the rights
vested in it by this Indenture and the rights of the Holders of
Securities of such series by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect
and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid
of the exercise of any power granted in this Indenture or to
enforce any other legal or equitable right vested in the Trustee
by this Indenture or by law or the rights of the Holders of
Securities of such series.
SECTION 5.5 Restoration of Rights on Abandonment of
Proceedings. In case the Trustee or the Holder of a Security
shall have proceeded to enforce any right or remedy under this
Indenture and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely
to the Trustee or such Holder, then, and in every such case, the
Issuer, the Trustee and the Securityholders shall be restored
respectively to their former positions and rights hereunder, and
all rights, remedies and powers of the Issuer, the Trustee and
the Securityholders shall continue as though no such proceedings
had been taken.
SECTION 5.6 Limitations on Suits by Securityholders.
No Holder of any Security of any series or of any Coupon
appertaining thereto shall have any right by virtue or by
availing of any provision of this Indenture to institute any
action or proceeding at law or in equity or in bankruptcy or
otherwise upon or under or with respect to this Indenture, or for
the appointment of a trustee, receiver, liquidator, custodian or
other similar official or for any other remedy hereunder, unless
an Event of Default with respect to such series shall have
occurred and be continuing and such Holder previously shall have
given to the Trustee written notice of such default and of the
continuance thereof, as hereinbefore provided, and unless also
the Holders of not less than 25% in aggregate principal amount of
the Securities of such series then Outstanding shall have made
written request upon the Trustee to institute such action or pro
ceedings in its own name as trustee hereunder in respect of such
Event of Default and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby and
the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity shall have failed to institute any such
action or proceeding and no direction inconsistent with such
written request shall have been given to the Trustee pursuant to
Section 5.9; it being understood and intended, and being
expressly covenanted by the taker and Holder of every Security or
Coupon with every other taker and Holder of a Security of the
same series and the Trustee, that no one or more Holders of
Securities of such series or Coupons appertaining thereto 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 any other Holder of Securities of such series or
Coupons appertaining thereto, or to obtain or seek to obtain
priority over or preference to any other such Holder of a
Security of the same series or to enforce any right under this
Indenture, except in the manner herein provided and except as
provided pursuant to Section 2.3 for a series for the equal,
ratable and common benefit of all Holders of Securities of such
series and Coupons appertaining thereto. For the protection and
enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief
as can be given either at law or in equity.
SECTION 5.7 Unconditional Right of Securityholders to
Institute Certain Suits. Notwithstanding any other provision in
this Indenture and any provision of any Security, the right of
any Holder of any Security or Coupon to receive payment of the
principal of and any interest on such Security or Coupon on or
after respective due dates expressed in such Security or Coupon,
or to institute suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
SECTION 5.8 Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default. Except as provided in the last
sentence of Section 2.9 and subject to Section 5.6, no right or
remedy herein conferred upon or reserved to the Trustee or to the
Holders of Securities or Coupons is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of
Securities or Coupons to exercise any right or power accruing
upon any Event of Default occurring and continuing as aforesaid
shall impair any such right or power or shall be construed to be
a waiver of any such Event of Default or an acquiescence therein;
and, subject to Section 5.6, every power and remedy given by this
Indenture or by law to the Trustee or to the Holders of
Securities or Coupons may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee or by the
Holders of Securities or Coupons.
SECTION 5.9 Control by Holders of Securities. The
Holders of a majority in aggregate principal amount of the
Securities of any series then Outstanding shall have the right
to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee under, or exercising any
trust or power conferred upon the Trustee with respect to the
Securities of such series by, this Indenture; provided that such
direction shall not be otherwise than in accordance with law and
the provisions of this Indenture and provided further that
(subject to the provisions of Section 6.1) the Trustee shall have
the right to decline to follow any such direction if the Trustee,
being advised by counsel, shall determine that the action or
proceeding so directed may not lawfully be taken or if the
Trustee in good faith by its board of directors, its executive
committee or a trust committee of directors or Responsible
Officers of the Trustee shall determine that the action or
proceedings so directed would involve the Trustee in personal
liability or that the actions or forbearances specified in or
pursuant to such direction would be unduly prejudicial to the
interests of Holders of the Securities of all affected series not
joining in the giving of said direction, it being understood that
(subject to Section 6.1) the Trustee shall have no duty to
ascertain whether or not such actions or forbearances are unduly
prejudicial to such Holders.
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 or
directions by Securityholders.
SECTION 5.10 Waiver of Past Defaults. Prior to the
declaration of acceleration of the maturity of the Securities of
any series as provided in Section 5.1, the Holders of a majority
in aggregate principal amount of the Securities of such series
then Outstanding with respect to which a default or an Event of
Default shall have occurred and be continuing may on behalf of
the Holders of all Securities of such series waive any past
default or Event of Default not theretofore cured with respect to
such series and its consequences, except a default or an Event of
Default in respect of a covenant or provision hereof or of any
Security which cannot be modified or amended without the consent
of the Holder of each Security of such series. In the case of
any such waiver, the Issuer, the Trustee and the Holders of all
Securities of such series shall be restored to their former
positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other default or 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 any purpose of this
Indenture.
SECTION 5.11 Trustee to Give Notice of Default, But
May Withhold in Certain Circumstances. The Trustee shall, within
60 days after the occurrence of a default with respect to the
Securities of any series, give notice of all defaults with
respect to such series known to the Trustee (i) if any
Unregistered Securities of such series are then Outstanding, to
the Holders thereof by publication at least once in each
Authorized Newspaper with respect to such series and (ii) to all
Holders of Securities of such series in the manner and to the
extent provided in Section 4.4(c), unless in each case such
defaults shall have been cured before the mailing or publication
of such notice (the term "default" for the purpose of this
Article being hereby defined to mean any event or condition which
is, or with notice or lapse of time or both would become, an
Event of Default); provided that, except in the case of default
in the payment of the principal of or the interest on any of the
Securities of such series, or in the payment of any sinking fund
installment or analogous payment on such series, the Trustee
shall be protected in withholding such notice if and so long as
the board of directors, the executive committee or a trust
committee of directors or Responsible Officers of the Trustee in
good faith determines that the withholding of such notice is in
the interests of the Securityholders of such series; and provided
further that in the case of a default of the character specified
in Section 5.1(d) with respect to Securities of such series no
such notice shall be given until at least 30 days after the
occurrence thereof (without extending any period of grace with
respect to a default specified in Section 5.1(d)).
SECTION 5.12 Right of Court to Require Filing of
Undertaking to Pay Costs. All parties to this Indenture agree,
and each Holder of any Security or Coupon 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, suffered 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; but the provisions of this Section
shall not (subject to applicable laws) apply to any suit
instituted by the Trustee, to any suit instituted by any
Securityholder or group of Securityholders of any series holding
in the aggregate more than 10% in aggregate principal amount of
the Securities of such series, or, in the case of any suit
relating to or arising under clause (d), (e) or (f) of Section
5.1 (if the suit relates to the Securities of more than one but
less than all series), 10% in aggregate principal amount of the
Securities then Outstanding and affected thereby, or, in the case
of any suit relating to or arising under clause (d), (e) or (f)
(if the suit relates to all the Securities then Outstanding), or
clause (g) or (h) of Section 5.1, 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 any or interest (including interest
evidenced by any Coupon) on any Security on or after the due date
expressed in such Security or Coupon or any date fixed for
redemption.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the
Trustee; During Default; Prior to Default. The Trustee, prior to
the occurrence of an Event of Default with respect to the
Securities of a particular series and after the curing or waiving
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 a
particular series has occurred (which has not been cured or
waived), the Trustee shall exercise with respect to such series
such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
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 wilful 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 or waiving of all such Events of Default which may have
occurred with respect to such series:
(i) the duties and obligations of the Trustee
with respect to the Securities of such series shall be determined
solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(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 statements, certificates or opinions furnished
to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such statements, certificates
or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or
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 liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with an appropriate direction of the Holders pursuant
to Section 5.9 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 contained in this Indenture
shall require the Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance
of any of its duties or in the exercise of any of its rights or
powers, if there shall be reasonable grounds for believing that
the repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it.
The provisions of this Section 6.1 are in furtherance
of and subject to Section 315 of the Trust Indenture Act.
SECTION 6.2 Certain Rights of the Trustee. In
furtherance of and subject to the Trust Indenture Act and subject
to Section 6.1:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, Officers'
Certificate or other certificate, statement, instrument, opinion,
report, notice, request, consent, order, bond, debenture, note,
Coupon, security or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party
or parties;
(b) any request, direction, order or demand of the
Issuer mentioned herein shall be sufficiently evidenced by an
Officers' Certificate (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 any assistant secretary of
the Issuer;
(c) the Trustee may consult with counsel and any
written advice or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted to be taken 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 at the request, order or direction of any of the
Holders pursuant to the provisions of this Indenture, unless such
Holders shall have offered to the Trustee reasonable indemnity
against the costs, expenses and liabilities which might be
incurred therein or thereby;
(e) the Trustee shall not be liable for any action
taken or omitted by it in good faith and believed by it to be
authorized or within the discretion, rights or powers conferred
upon it by this Indenture;
(f) prior to the occurrence of an Event of Default
with respect to the Securities of any series and after the curing
or waiving of all such 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,
appraisal, bond, debenture, note, Coupon, security or other paper
or document unless requested in writing to do so by the Holders
of not less than a majority in aggregate principal amount of the
Securities of such series then Outstanding; provided 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 costs, expenses or liabilities
as a condition to proceeding; the reasonable expenses of every
such investigation shall be paid by the Issuer or, if paid by the
Trustee, shall be repaid by the Issuer 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 not regularly in its employ,
and the Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent or attorney appointed
with due care by it hereunder.
SECTION 6.3 Trustee Not Responsible for Recitals,
Disposition of Securities or Application of Proceeds Thereof.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the
statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee
makes no representation as to the validity or sufficiency of this
Indenture or of the Securities or Coupons. The Trustee shall not
be accountable for the use or application by the Issuer of any of
the Securities or of the proceeds thereof.
SECTION 6.4 Trustee and Agents May Hold Securities or
Coupons; Collections, etc. The Trustee, any paying agent,
Security Registrar or any other agent of the Issuer or the
Trustee, in its individual or any other capacity, may become the
owner or pledgee of Securities or Coupons with the same rights it
would have if it were not the Trustee or such agent and, subject
to Sections 6.8 and 6.13, may otherwise deal with the Issuer and
receive, collect, hold and retain collections from the Issuer
with the same rights it would have if it were not the Trustee or
such paying agent, Security Registrar or such other agent.
SECTION 6.5 Moneys Held by Trustee. Subject to the
provisions of Section 10.4, 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
mandatory provisions of law or as provided pursuant to Section
2.3 for a series. Neither the Trustee nor any agent of the
Issuer or the Trustee shall be under any liability for interest
on any moneys received by it hereunder except as otherwise agreed
with the Issuer.
SECTION 6.6 Compensation and Indemnification of
Trustee and Its Prior Claim. The Issuer 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 provisions of law in regard to the compensation of a
trustee of an express trust) as the Issuer and the Trustee shall
mutually agree, and except as otherwise expressly provided herein
the Issuer covenants and agrees to pay or reimburse the Trustee
upon its request for all reasonable expenses, disbursements and
advances incurred or made by or on behalf of it 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 agents and other persons not regularly in its
employ) except any such expense, disbursement or advance as may
arise from its negligence or bad faith. The Issuer 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 its part arising out of or in
connection with the acceptance or administration of this
Indenture or the trusts hereunder and its duties hereunder,
including the costs and expenses of defending itself against or
investigating any claim or liability in the premises. The
obligations of the Issuer under this Section to compensate and
indemnify the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. Such additional indebtedness shall
be a senior claim to that of the Securities upon all property and
funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of particular Securities
or Coupons, and the Securities and the Coupons are hereby
subordinated to such senior claim.
SECTION 6.7 Right of Trustee to Rely on Officers'
Certificate, etc. Subject to Sections 6.1 and 6.2, 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, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to
be conclusively proved and established by an Officers'
Certificate delivered to the Trustee, and such certificate, in
the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action
taken, suffered or omitted by it under the provisions of this
Indenture in reliance thereon.
SECTION 6.8 Qualification of Trustee; Conflicting
Interests.
(a) If the Trustee has or shall acquire any conflicting
interest (as defined in subsection (c) of this Section), then
within 90 days after ascertaining that it has such conflicting
interest, and if the default (as defined in subsection (c) of
this Section) to which such conflicting interest relates has not
been cured or duly waived or otherwise eliminated before the end
of such 90-day period, the Trustee shall either eliminate such
conflicting interest or, except as otherwise provided below,
resign, and the Issuer shall take prompt steps to have a
successor appointed in the manner provided in Section 6.10.
(b) If the Trustee shall fail to comply with the provisions
of subsection (a) of this Section, the Trustee shall, within 10
days after the expiration of such 90-day period, transmit notice
of such failure to the Securityholders in the manner and to the
extent provided in Section 4.4(c) and, if any series of
Unregistered Securities are then Outstanding, shall publish
notice of such failure at least once in each Authorized Newspaper
with respect to such series. Subject to the provisions of
Section 5.12, unless the Trustee's duty to resign is stayed as
provided below, any Securityholder who has been a bona fide
holder of the Securities of any 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, if the Trustee
fails, after written request thereof by such Securityholder to
comply with the provisions of subsection (a) of this Section.
Except in the case of a default in the payment of the
principal of or interest on the Securities of any series (or in
the payment of any sinking fund or analogous obligation with
respect to any series), the Trustee shall not be required to
resign as provided by this Section 6.8 if the Trustee shall have
sustained the burden of proving, on application to the Commission
and after opportunity for hearing thereon, that
(i) the default under the Indenture may be cured or waived
during a reasonable period and under the procedures described in
such application, and
(ii) a stay of the Trustee's duty to resign will not be
inconsistent with the interests of the Holders of the Securities.
The filing of such an application shall automatically stay
the performance of the duty to resign until the Commission orders
otherwise. Any resignation of the Trustee shall become effective
only upon the appointment of a successor trustee in accordance
with the provisions of Section 6.10 and such successor's
acceptance of such an appointment.
(c) For the purposes of this Section, the Trustee shall be
deemed to have a conflicting interest if the Securities of any
series are in default (as determined in accordance with the
provisions of Section 5.1, but exclusive of any period of grace
or requirement of notice) and
(i) the Trustee is Trustee under this Indenture
with respect to the Outstanding Securities of any other series or
is a trustee under another indenture under which any other
securities, or certificates of interest or participation in any
other securities, of the Issuer are outstanding, unless such
other indenture is a collateral trust indenture under which the
only collateral consists of Securities issued under this
Indenture; provided that there shall be excluded from the
operation of this paragraph this Indenture with respect to the
Securities of any other series and such other indenture or
indentures under which other securities, or certificates of
interest or participation in other securities, of the Issuer are
outstanding, if:
(1) this Indenture (and all series of
Securities issuable hereunder) and such other indenture or
indentures (and all series of securities issuable thereunder) are
wholly unsecured and rank equally, and such other indenture or
indentures (and such series) are specifically described in this
Indenture or are hereafter qualified under the Trust Indenture
Act, unless the Commission shall have found and declared by order
pursuant to Section 305(b) or Section 307(c) of the Trust
Indenture Act that differences exist between the provisions of
this Indenture with respect to Securities of such series and one
or more other series, or between the provisions of this Indenture
and the provisions of such other indenture or indentures, as
applicable, which are so likely to involve a material conflict of
interest as to make it necessary in the public interest or for
the protection of investors to disqualify the Trustee from acting
as such under this Indenture with respect to the Securities of
such series and such other series, or under this Indenture and
such other indenture or indentures, as applicable, or
(2) the Issuer shall have sustained the
burden of proving, on application to the Commission and after
opportunity for hearing thereon, that trusteeship under this
Indenture with respect to the Securities of such series and such
other series, or under this Indenture and such other indenture or
indentures, as applicable, is not so likely to involve a material
conflict of interest as to make it necessary in the public
interest or for the protection of investors to disqualify the
Trustee from acting as such under this Indenture with respect to
the Securities of such series and such other series, or under
this Indenture and such other indenture or indentures, as
applicable;
(ii) the Trustee or any of its directors or
executive officers is an underwriter for the Issuer;
(iii) the Trustee directly or indirectly
controls or is directly or indirectly controlled by or is under
direct or indirect common control with an underwriter for the
Issuer;
(iv) the Trustee or any of its directors or
executive officers is a director, officer, partner, employee,
appointee or representative of the Issuer, or of an underwriter
(other than the Trustee itself) for the Issuer who is currently
engaged in the business of underwriting, except that (x) one
individual may be a director or an executive officer, or both, of
the Trustee and a director or an executive officer, or both, of
the Issuer, but may not be at the same time an executive officer
of both the Trustee and the Issuer; (y) if and so long as the
number of directors of the Trustee in office is more than nine,
one additional individual may be a director or an executive
officer, or both, of the Trustee and a director of the Issuer;
and (z) the Trustee may be designated by the Issuer or by any
underwriter for the Issuer to act in the capacity of transfer
agent, registrar, custodian, paying agent, fiscal agent, escrow
agent or depositary, or in any other similar capacity, or,
subject to the provisions of subsection (c)(i) of this Section,
to act as trustee, whether under an indenture or otherwise;
(v) 10% or more of the voting securities of the
Trustee is beneficially owned either by the Issuer or by any
director, partner or executive officer thereof, or 20% or more of
such voting securities is beneficially owned, collectively, by
any two or more of such persons; or 10% or more of the voting
securities of the Trustee is beneficially owned either by an
underwriter for the Issuer or by any director, partner or
executive officer thereof, or is beneficially owned,
collectively, by any two or more such persons;
(vi) the Trustee is the beneficial owner of, or
holds as collateral security for an obligation which is in
default, (x) 5% or more of the voting securities, or 10% or more
of any other class of security, of the Issuer, not including the
Securities issued under this Indenture and securities issued
under any other indenture under which the Trustee is also
trustee, or (y) 10% or more of any class of security of an
underwriter for the Issuer;
(vii) the Trustee is the beneficial owner of,
or holds as collateral security for an obligation which is in
default, 5% or more of the voting securities of any person who,
to the knowledge of the Trustee, owns 10% or more of the voting
securities of, or controls directly or indirectly or is under
direct or indirect common control with, the Issuer;
(viii) the Trustee is the beneficial owner of,
or holds as collateral security for an obligation which is in
default, 10% or more of any class of security of any person who,
to the knowledge of the Trustee, owns 50% or more of the voting
securities of the Issuer;
(ix) the Trustee owns on the date of default (as
determined in accordance with the provisions of Section 5.1, but
exclusive of any period of grace or requirement of notice) or any
anniversary of such default while such default upon the
Securities of such series remains outstanding, in the capacity of
executor, administrator, testamentary or inter vivos trustee,
guardian, committee or conservator, or in any other similar
capacity, an aggregate of 25% or more of the voting securities,
or of any class of security, of any person, the beneficial
ownership of a specified percentage of which would have
constituted a conflicting interest under clause (vi), (vii) or
(viii) of this subsection. As to any such securities of which
the Trustee acquired ownership through becoming executor,
administrator or testamentary trustee of an estate which included
them, the provisions of the preceding sentence shall not apply,
for a period of two years from the date of such acquisition, to
the extent that such securities included in such estate do not
exceed 25% of such voting securities or 25% of any such class of
security. Promptly after the date of any such default upon the
Securities of such series and annually in each succeeding year
that the Securities of such series remain in default the Trustee
shall make a check of its holdings of such securities in any of
the above-mentioned capacities as of such dates. If the Issuer
fails to make payment in full of principal of or interest on any
of the Securities when and as the same becomes due and payable,
and such failure continues for 30 days thereafter, the Trustee
shall make a prompt check of its holdings of such securities in
any of the above-mentioned capacities as of the date of the
expiration of such 30-day period, and after such date,
notwithstanding the foregoing provisions of this paragraph, all
such securities so held by the Trustee, with sole or joint
control over such securities vested in it, shall be considered as
though beneficially owned by the Trustee for the purposes of
clauses (vi), (vii) and (viii) of this subsection; or
(x) except under the circumstances described in
paragraphs (1), (3) (4), (5) and (6) of Section 6.13(b), the
Trustee shall be or shall become a creditor of the Issuer.
For purposes of clause (i) of this subsection, the term
"series of securities" or "series" means a series, class or group
of securities issuable under an indenture pursuant to whose terms
holders of one such series may vote to direct the trustee, or
otherwise take action pursuant to a vote of such holders,
separately from holders of another such series; provided, that
"series of securities" or "series" shall not include any series
of securities issuable under an indenture if all such series rank
equally and are wholly unsecured.
The specification of percentages in clauses (v) to
(ix), inclusive, of this subsection shall not be construed as
indicating that the ownership of such percentages of the
securities of a person is or is not necessary or sufficient to
constitute direct or indirect control for the purposes of clauses
(iii) or (vii) of this subsection.
For the purposes of clauses (vi), (vii), (viii) and
(ix) of this subsection only,
(i) the terms "security" and "securities" shall
include only such securities as are generally known as corporate
securities, but shall not include any note or other evidence of
indebtedness issued to evidence an obligation to repay moneys
lent to a person by one or more banks, trust companies or banking
firms, or any certificate of interest or participation in any
such note or evidence of indebtedness;
(ii) an obligation shall be deemed to be "in default"
when a default in payment of principal shall have continued for
30 days or more and shall not have been cured; and
(iii) the Trustee shall not be deemed to be the
owner or holder of (x) any security which it holds as collateral
security, as trustee or otherwise, for an obligation which is not
in default as defined in clause (ii) above, or (y) any security
which it holds as collateral security under this Indenture,
irrespective of any default hereunder, or (z) any security which
it holds as agent for collection, or as custodian, escrow agent
or depositary, or in any similar representative capacity.
Except as provided above, the word "security" or
"securities", as used in this Section, shall mean any note,
stock, treasury stock, bond, debenture, evidence of indebtedness,
certificate of interest or participation in any profit-sharing
agreement, collateral trust certificate, preorganization
certificate or subscription, transferable share, investment
contract, voting trust certificate, certificate of deposit for a
security, fractional undivided interest in oil, gas or other
mineral rights or, in general, any interest or instrument
commonly known as a "security", or any certificate of interest or
participation in, temporary or interim certificate for, receipt
for, guarantee of, or warrant or right to subscribe to or
purchase, any of the foregoing.
(d) For purposes of this Section:
(i) the term "underwriter", when used with
reference to the Issuer, shall mean every person who, within one
year prior to the time as of which the determination is made, has
purchased from the Issuer with a view to, or has offered or sold
for the Issuer in connection with, the distribution of any
security of the Issuer outstanding at such time, or has
participated or has had a direct or indirect participation in any
such undertaking, or has participated or has had a participation
in the direct or indirect underwriting of any such undertaking,
but such term shall not include a person whose interest was
limited to a commission from an underwriter or dealer not in
excess of the usual and customary distributors' or sellers'
commission;
(ii) the term "director" shall mean any director
of a corporation or any individual performing similar functions
with respect to any organization, whether incorporated or
unincorporated;
(iii) the term "person" shall mean an
individual, a corporation, a partnership, an association, a joint-
stock company, a trust, an unincorporated organization or a
government or political subdivision thereof; as used in this
clause, the term "trust" shall include only a trust where the
interest or interests of the beneficiary or beneficiaries are
evidenced by a security;
(iv) the term "voting security" shall mean any
security presently entitling the owner or holder thereof to vote
in the direction or management of the affairs of a person, or any
security issued under or pursuant to any trust, agreement or
arrangement whereby a trustee or trustees or agent or agents for
the owner or holder of such security are presently entitled to
vote in the direction or management of the affairs of a person;
(v) the term "Issuer" shall mean any obligor upon
the Securities; and
(vi) the term "executive officer" shall mean the
president, every vice president, every trust officer, the
cashier, the secretary and the treasurer of a corporation, and
any individual customarily performing similar functions with
respect to any organization, whether incorporated or
unincorporated, but shall not include the chairman of the board
of directors.
(e) The percentages of voting securities and other
securities specified in this Section shall be calculated in
accordance with the following provisions:
(i) a specified percentage of the voting
securities of the Trustee, the Issuer or any other person
referred to in this Section (each of whom is referred to as a
"person" in this subsection) means such amount of the outstanding
voting securities of such person as entitles the holder or
holders thereof to cast such specified percentage of the
aggregate votes which the holders of all the outstanding voting
securities of such person are entitled to cast in the direction
or management of the affairs of such person;
(ii) a specified percentage of a class of
securities of a person means such percentage of the aggregate
amount of securities of the class outstanding;
(iii) the term "amount", when used in regard
to securities, means the principal amount if relating to
evidences of indebtedness, the number of shares if relating to
capital shares and the number of units if relating to any other
kind of security;
(iv) the term "outstanding" means issued and not
held by or for the account of the issuer; the following
securities shall not be deemed outstanding within the meaning of
this definition:
(A) securities of an issuer held in a
sinking fund relating to securities of the issuer of the same
class;
(B) securities of an issuer held in a
sinking fund relating to another class of securities of the
issuer, if the obligation evidenced by such other class of
securities is not in default as to principal or interest or
otherwise;
(C) securities pledged by the issuer thereof
as security for an obligation of the issuer not in default as to
principal or interest or otherwise; and
(D) securities held in escrow if placed in
escrow by the issuer thereof;
provided that any voting securities of an issuer shall
be deemed outstanding if any person other than the issuer is
entitled to exercise the voting rights thereof; and
(v) a security shall be deemed to be of the same
class as another security if both securities confer upon the
holder or holders thereof substantially the same rights and
privileges; provided that, in the case of secured evidences of
indebtedness, all of which are issued under a single indenture,
differences in the interest rates or maturity dates of various
series thereof shall not be deemed sufficient to constitute such
series different classes and provided, further, that, in the case
of unsecured evidences of indebtedness, differences in the
interest rates or maturity dates thereof shall not be deemed
sufficient to constitute them securities of different classes,
whether or not they are issued under a single indenture.
The Trustee shall comply with Section 310(b) of the Trust
Indenture Act. The provisions of this Section 6.8 are in
furtherance of and subject to Section 310(b) of the Trust
Indenture Act.
SECTION 6.9 Persons Eligible for Appointment as
Trustee. There shall at all times be a Trustee hereunder for
each series of Securities which shall be a corporation organized
and doing business under the laws of the United States of America
or of any state thereof or the District of Columbia having a
combined capital and surplus of at least $50,000,000, and which
is authorized under such laws to exercise corporate trust powers
and is subject to supervision or examination by federal, state or
District of Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority,
then, for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. No obligor upon the Securities or a
Person directly or indirectly controlling, controlled by or under
common control with such obligor shall serve as Trustee
hereunder. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the
Trustee shall resign immediately in the manner and with the
effect specified in Section 6.10.
The Trustee shall comply with Section 310(a) of the
Trust Indenture Act. The provisions of this Section 6.9 are in
furtherance of and subject to Section 310(a) of the Trust
Indenture Act.
SECTION 6.10 Resignation and Removal; Appointment of
Successor Trustee. (a) The Trustee, or any trustee or trustees
hereafter appointed, may at any time resign with respect to one
or more or all series of Securities by giving written notice of
resignation to the Issuer and (i) if any Unregistered Securities
of a series affected are then Outstanding, by giving notice of
such resignation to the Holders thereof by publication at least
once in each Authorized Newspaper with respect to such series,
(ii) if any Unregistered Securities of a series affected are then
Outstanding, by mailing notice of such resignation to the Holders
thereof who have filed their names and addresses with the Trustee
pursuant to Section 4.4(c)(ii) at such addresses as were so
furnished to the Trustee and (iii) by mailing notice of such
resignation to the Holders of the then Outstanding Registered
Securities of each series affected at their addresses as they
shall appear on the Security Register. Upon receiving such
notice of resignation, the Issuer shall promptly appoint a
successor trustee or trustees with respect to the applicable
series by written instrument, in duplicate, executed by authority
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 and shall have accepted
appointment within 30 days after the mailing of such notice of
resignation, the resigning trustee may petition any court of
competent jurisdiction for the appointment of a successor
trustee, or any Holder who has been a bona fide Holder of a
Security or Securities of such series for at least six months
may, subject to the provisions of Section 5.12, on behalf of such
Holder 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 6.8 and Section 310(b) of the Trust
Indenture Act with respect to any series of Securities after
written request therefor by the Issuer or by any Holder who has
been a bona fide Holder of a Security or Securities of such
series for at least six months unless the Trustee's duty to
resign is stayed in accordance with the provisions of Section
310(b) of the Trust Indenture Act; or
(ii) the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.9 and Section 310(a)
of the Trust Indenture Act and shall fail to resign after written
request therefor by the Issuer or by any such Holder; or
(iii) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent, or a receiver or
liquidator 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; or
(iv) the Issuer shall elect to remove the Trustee,
provided that no Event of Default, or event which following
notice or the passage of time or both would constitute an Event
of Default, shall then exist with respect to the Securities or
series thereof as to which the Trustee shall be removed and such
removal does not adversely affect the interests of any Holder of
such Securities or series;
then, in any such case, the Issuer may remove the Trustee with
respect to the Securities of any or all series, as appropriate,
and appoint a successor trustee for such series by written
instrument, in duplicate, executed by authority 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
trustees, or, subject to the provisions of Section 5.12 and
Section 315(a) of the Trust Indenture Act, in the case of clauses
(i), (ii) and (iii) of this paragraph any Holder who has been a
bona fide Holder of a Security or Securities of such series for
at least six months may, on behalf of such Holder and all others
similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a
successor trustee. 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 any series at the time Outstanding
may, at any time after the occurrence of an Event of Default with
respect to the Securities of such series, remove the Trustee and
appoint a successor trustee by delivering to the Trustee so
removed, to the successor trustee so appointed and to the Issuer
the evidence provided for in Section 7.1 of the action in that
regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with
respect to any series of Securities and any appointment of a
successor trustee with respect to such series pursuant to any of
the provisions of this Section shall become effective upon
acceptance of appointment by the successor trustee as provided
in Section 6.11.
SECTION 6.11 Acceptance of Appointment by Successor
Trustee. Any successor trustee appointed as provided in Section
6.10 shall execute, acknowledge and deliver to the Issuer and to
its predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all applicable series of
Securities shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become vested
with all rights, powers, trusts and duties with respect to such
applicable series of its predecessor hereunder, with like effect
as if originally named as trustee for such series hereunder; but,
nevertheless, on the written request of the Issuer or of the
successor trustee, upon payment of its charges then unpaid, the
trustee ceasing to act shall, subject to Section 10.4, pay over
to the successor trustee all moneys at the time held by it
hereunder for the benefit of such applicable series and shall
execute, acknowledge and deliver an instrument transferring to
such successor trustee all such rights, powers, trusts and
duties. Upon request of any such successor trustee, the Issuer
shall execute and acknowledge any and all instruments in writing
for more fully and certainly vesting in and confirming to such
successor trustee all such rights, powers and trusts. Any
trustee ceasing to act shall, nevertheless, retain a prior claim
upon all property or funds held or collected by such trustee for
the benefit of such applicable series to secure any amounts then
due it pursuant to the provisions of Section 6.6.
If a successor trustee is appointed with respect to the
Securities of one or more (but less than all) series, the Issuer,
the predecessor trustee and each successor trustee so appointed
shall execute, acknowledge 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 such predecessor trustee with respect to the
Securities of any series as to which such predecessor trustee is
not retiring shall continue to be vested in such predecessor
trustee, 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,
it being understood that nothing herein or in such supplemental
indenture shall constitute such trustees as co-trustees of the
same trust and that each such trustee shall be trustee of a
separate trust or trusts under this Indenture.
No successor trustee with respect to any series of
Securities shall accept appointment as provided in this Section
unless at the time of such acceptance such successor trustee
shall be qualified under the provisions of Section 6.8 and
eligible under the provisions of Section 6.9.
Upon acceptance of appointment by any successor trustee
as provided in this Section, the Issuer shall give notice thereof
(a) if any Unregistered Securities of a series affected are then
Outstanding, to the Holders thereof by publication of such notice
at least once in each Authorized Newspaper with respect to such
series, (b) if any Unregistered Securities of a series affected
are then Outstanding, to the Holders thereof who have filed their
names and addresses with the Trustee pursuant to Section
4.4(c)(ii) by mailing such notice to such Holders at such
addresses as were so furnished to the Trustee (and the Trustee
shall make such information available to the Issuer or, under the
circumstances discussed in the last sentence of this paragraph,
the successor trustee for such purpose) and (c) to the Holders of
Registered Securities of each series affected, by mailing such
notice to such Holders at their addresses as they shall appear on
the Security Register. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the
notice called for by the preceding sentence may be combined with
the notice called for by Section 6.10. If the Issuer fails to
give such notice within 10 days after acceptance of appointment
by the successor trustee, the successor trustee shall cause such
notice to be given at the expense of the Issuer.
SECTION 6.12 Merger, Conversion, Consolidation or
Succession to Business of Trustee. Any corporation into which
the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to the corporate trust
business of the Trustee, shall be the successor of the Trustee
hereunder, provided that such corporation shall be qualified
under the provisions of Section 6.8 and eligible under the
provisions of Section 6.9, 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 at the time of such succession to the Trustee
any of the Securities of any series shall have been authenticated
but not delivered, any such successor trustee may adopt the
certificate of authentication of any predecessor trustee and
deliver the Securities so authenticated; and, in case at that
time any of the Securities of any series shall not have been
authenticated, any successor trustee may authenticate such
Securities either in the name of any predecessor hereunder or in
the name of such successor trustee; and in all such cases such
certificate of authentication shall have the full force which it
is anywhere in the Securities of such series or in this Indenture
provided that the certificate of authentication of the Trustee
shall have; provided that the right to adopt the certification of
any predecessor trustee or to authenticate Securities of any
series in the name of any predecessor trustee shall apply only to
its successor or successors by merger, conversion or
consolidation.
SECTION 6.13 Preferential Collection of Claims
Against the Issuer. (a) Subject to all the provisions of this
Section, if the Trustee shall be or shall become a creditor,
directly or indirectly, secured or unsecured, of the Issuer
within three months prior to a default, as defined in subsection
(c) of this Section, or subsequent to such a default, then,
unless and until such default shall be cured, the Trustee shall
set apart and hold in a special account for the benefit of the
Trustee individually, the Holders of the Securities and Coupons
and the holders of other indenture securities (as defined in such
subsection (c)):
(1) an amount equal to any and all reductions in
the amount due and owing upon any claim as such creditor in
respect of principal or interest effected after the beginning of
such three months' period and valid as against the Issuer and
its other creditors, except any such reduction resulting from the
receipt or disposition of any property described in clause (2) of
this subsection, or from the exercise of any right of set-off
which the Trustee could have exercised if a petition in
bankruptcy had been filed by or against the Issuer upon the date
of such default; and
(2) all property received by the Trustee in
respect of any claim as such creditor, either as security
therefor, or in satisfaction or composition thereof, or
otherwise, after the beginning of such three months' period, or
an amount equal to the proceeds of any such property if disposed
of, subject, however, to the rights, if any, of the Issuer and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the
right of the Trustee:
(A) to retain for its own account (i) payments
made on account of any such claim by any person (other than the
Issuer) who is liable thereon, (ii) the proceeds of the bona fide
sale of any such claim by the Trustee to a third person, and
(iii) distributions made in cash, securities or other property in
respect of claims filed against the Issuer in bankruptcy or
receivership or in proceedings for reorganization pursuant to
Title 11 of the United States Code or applicable state law;
(B) to realize, for its own account, upon any
property held by it as security for any such claim, if such
property was so held prior to the beginning of such three
months' period;
(C) to realize, for its own account, but only to
the extent of the claim hereinafter mentioned, upon any property
held by it as security for any such claim, if such claim was
created after the beginning of such three months' period and
such property was received as security therefor simultaneously
with the creation thereof, and if the trustee shall sustain the
burden of proving that at the time such property was so received
the Trustee had no reasonable cause to believe that a default as
defined in subsection (c) of this Section would occur within
three months; or
(D) to receive payment on any claim referred to
in clause (B) or (C) of this subsection, against the release of
any property held as security for such claim as provided in such
clause (B) or (C), as the case may be, to the extent of the fair
value of such property,
For the purposes of clauses (B), (C) and (D), property
substituted after the beginning of such three months period for
property held as security at the time of such substitution shall,
to the extent of the fair value of the property released, have
the same status as the property released, and, to the extent that
any claim referred to in any of such clauses is created in
renewal of or in substitution for or for the purpose of repaying
or refunding any pre-existing claim of the Trustee as such
creditor, such claim shall have the same status as such pre-
existing claim.
If the Trustee shall be required to account, the funds
and property held in such special account and the proceeds
thereof shall be apportioned among the Trustee, the Holders of
each series of Securities issued hereunder and the holders of
other indenture securities in such manner that the Trustee, the
Holders of each series of Securities issued hereunder and the
holders of other indenture securities realize, as a result of
payments from such special account and payments of dividends on
claims filed against the Issuer in bankruptcy or receivership or
in proceedings for reorganization pursuant to Title 11 of the
United States Code or applicable state law, the same percentage
of their respective claims, figured before crediting to the claim
of the Trustee anything on account of the receipt by it from the
Issuer of the funds and property in such special account and
before crediting to the respective claims of the Trustee, the
Holders of each series of Securities issued hereunder and the
holders of other indenture securities dividends on claims filed
against the Issuer in bankruptcy or receivership or in
proceedings for reorganization pursuant to Title 11 of the United
States Code or applicable state law, but after crediting thereon
receipts on account of the indebtedness represented by their
respective claims from all sources other than from such dividends
and from the funds and property so held in such special account.
As used in this paragraph with respect to any claim, the term
"dividends" shall include any distribution with respect to such
claim, in bankruptcy or receivership or in proceedings for
reorganization pursuant to Title 11 of the United States Code or
applicable state law, whether such distribution is made in cash,
securities or other property, but shall not include any such
distribution with respect to the secured portion, if any, of such
claim. The court in which such bankruptcy, receivership or
proceeding for reorganization is pending shall have jurisdiction
(i) to apportion among the Trustee, the Holders of each series of
Securities issued hereunder, and the holders of other indenture
securities in accordance with the provisions of this paragraph,
the funds and property held in such special account and the
proceeds thereof, or (ii) in lieu of such apportionment, in whole
or in part, to give to the provisions of this paragraph due
consideration in determining the fairness of the distributions to
be made to the Trustee, such Holders and the holders of other
indenture securities with respect to their respective claims, in
which event it shall not be necessary to liquidate or to appraise
the value of any securities or other property held in such
special account or as security for any such claim, or to make a
specific allocation of such distributions as between the secured
and unsecured portions of such claims, or otherwise to apply the
provisions of this paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the
beginning of such three-months' period shall be subject to the
provisions of this subsection as though such resignation or
removal had not occurred. If any Trustee has resigned or been
removed prior to the beginning of such three-months' period, it
shall be subject to the provisions of this subsection if and only
if the following conditions exist:
(i) the receipt of property or reduction of claim
which would have given rise to the obligation to account, if such
Trustee had continued as trustee, occurred after the beginning of
such three-months' period; and
(ii) such receipt of property or reduction of
claim occurred within three months after such resignation or
removal.
(b) There shall be excluded from the operation of this
Section a creditor relationship arising from:
(1) ownership or acquisition of securities issued
under any indenture or any security or securities having a
maturity of one year or more at the time of acquisition by the
Trustee;
(2) advances authorized by a receivership or
bankruptcy court of competent jurisdiction or by this Indenture
for the purpose of preserving any property which shall at anytime
be subject to the lien of this Indenture or of discharging tax
liens or other prior liens or encumbrances thereon, if notice of
such advance and of the circumstances surrounding the making
thereof is given to the Securityholders at the time and in the
manner provided in this Indenture;
(3) disbursements made in the ordinary course of
business in the capacity of trustee under an indenture, transfer
agent, registrar, custodian, paying agent, fiscal agent or
depositary, or other similar capacity;
(4) an indebtedness created as a result of
services rendered or premises rented or an indebtedness created
as a result of goods or securities sold in a cash transaction as
defined in subsection (c)(3) of this Section;
(5) the ownership of stock or of other securities
of a corporation organized under the provisions of Section 25(a)
of the Federal Reserve Act, as amended, which is directly or
indirectly a creditor of the Issuer; or
(6) the acquisition, ownership, acceptance or
negotiation of any drafts, bills of exchange, acceptances or
obligations which fall within the classification of self-
liquidating paper as defined in subsection (c)(4) of this
Section.
(c) As used in this Section:
(1) the term "default" shall mean any failure to
make payment in full of the principal of or interest upon any of
the Securities or upon the other indenture securities when and as
such principal or interest becomes due and payable;
(2) the term "other indenture securities" shall
mean securities upon which the Issuer is an obligor (as defined
in the Trust Indenture Act of 1939) outstanding under any other
indenture (i) under which the Trustee is also trustee, (ii) which
contains provisions substantially similar to the provisions of
subsection (a) of this Section and (iii) under which a default
exists at the time of the apportionment of the funds and property
held in said special account;
(3) the term "cash transaction" shall mean any
transaction in which full payment for goods or securities sold is
made within seven days after delivery of the goods or securities
in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand;
(4) the term "self-liquidating paper" shall mean
any draft, bill of exchange, acceptance or obligation which is
made, drawn, negotiated or incurred by the Issuer for the purpose
of financing the purchase, processing, manufacture, shipment,
storage or sale of goods, wares or merchandise and which is
secured by documents evidencing title to, possession of, or a
lien upon, the goods, wares or merchandise or the receivables or
proceeds arising from the sale of the goods, wares or merchandise
previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the
creditor relationship with the Issuer arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation; and
(5) the term "Issuer" shall mean any obligor upon
the Securities.
The Trustee shall comply with Sections 3.11(a) and (b) of
the Trust Indenture Act. The provisions of this Section 6.13 are
in furtherance of and subject to Sections 3.11(a) and (b) of the
Trust Indenture Act.
SECTION 6.14 Appointment of Authenticating Agent.
As long as any Securities of a series remain Outstanding, the
Trustee may, by an instrument in writing, appoint with the
approval of the Issuer an authenticating agent (the
"Authenticating Agent") which shall be authorized to act on
behalf of, but subject to the direction of, the Trustee to
authenticate Securities of such series, including without
limitation Securities issued upon exchange, registration of
transfer, partial redemption or pursuant to Section 2.9.
Securities of such series so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee. Whenever
reference is made in this Indenture to the authentication and
delivery of Securities of any series by the Trustee or to the
Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the
Trustee by an Authenticating Agent for such series and a
certificate of authentication executed on behalf of the Trustee
by such Authenticating Agent. Such Authenticating Agent shall at
all times be a corporation organized and doing business under the
laws of the United States of America or of any state thereof or
of the District of Columbia authorized under such laws to
exercise corporate trust powers, having a combined capital and
surplus of at least $5,000,000 (determined as provided in Section
6.9 with respect to the Trustee) and subject to supervision or
examination by federal or state authority.
Any corporation into which any Authenticating Agent may
be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or
consolidation to which any Authenticating Agent shall be a party,
or any corporation succeeding to the corporate agency or
corporate trust business of any Authenticating Agent, shall be
the successor to such Authenticating Agent with respect to all
series of Securities for which it served as Authenticating Agent
without the execution or filing of any paper or any further act
on the part of the Trustee or such Authenticating Agent.
Any Authenticating Agent may at any time, and if it
shall cease to be eligible hereunder shall, resign by giving
written notice of resignation to the Trustee and to the Issuer.
The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice thereof to such
Authenticating Agent and the Issuer. Upon receiving such a
notice of resignation or upon such a termination, or in case at
any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall
upon receipt of an Issuer Order appoint a successor
Authenticating Agent and shall provide notice of such appointment
to all Holders of Securities affected thereby in the manner and
to the extent provided in Section 6.11 with respect to the
appointment of a successor trustee. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become
vested with all rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an
Authenticating Agent.
The Issuer agrees to pay the Authenticating Agent from
time to time reasonable compensation. The Authenticating Agent
for the Securities shall have no responsibility or liability for
any action taken by it as such at the direction of the Trustee.
Sections 6.2, 6.3, 6.4, 6.6 (except for the last
sentence thereof) and 7.3 shall be applicable to any
Authenticating Agent.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by
Securityholders. Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this
Indenture or in any applicable Board Resolution, Officers'
Certificate or supplemental indenture to be given or taken by a
specified percentage in aggregate principal amount of the Holders
of one or more series may be evidenced by one or more instruments
of substantially similar tenor signed by such specified
percentage of Holders in person or by agent or proxy duly
appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument
or instruments are delivered to the Trustee.
SECTION 7.2 Proof of Execution of Instruments and of
Holding of Securities. Subject to Sections 6.1 and 6.2, proof of
the execution of any instrument by a Holder or his agent or proxy
or of any instrument appointing any such agent or proxy shall be
sufficient if made in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner
as shall be satisfactory to the Trustee. Subject to Sections 6.1
and 6.2, proof of the holding by any Person of any of the
Securities of any series shall be sufficient if made in the
following manner:
(a) The ownership of an Unregistered Security of
any series, or of any Coupon attached thereto at its issuance,
and the identifying number of such Security and the date of such
ownership, may be proved by the production of such Security or
Coupon or by a certificate executed by any trust company, bank,
banker or recognized securities dealer, wherever situated, if
such certificate shall be deemed by the Trustee to be
satisfactory. Each such certificate shall be dated and shall
state that on the date thereof a Security of such series bearing
a specified identifying number or a Coupon appertaining thereto
was deposited with or exhibited to such trust company, bank,
banker or recognized securities dealer by the person named in
such certificate. Any such certificate may be issued in respect
of one or more Unregistered Securities of one or more series
specified therein or one or more Coupons appertaining thereto.
The ownership by the Person named in any such certificate of any
Unregistered Security or Coupon specified therein shall be
presumed to continue unless at the time of any determination of
such ownership and holding (1) another certificate bearing a
later date issued in respect of such Security or Coupon shall be
produced, (2) such Security or Coupon shall be produced by some
other Person, (3) such Security, or the Security to which such
Coupon relates, shall have ceased to be Outstanding, or (4) such
Coupon shall have been paid.
Subject to Sections 6.1 and 6.2, the fact and date of
the execution of any such instrument and the ownership, amount
and numbers of any Unregistered Securities or Coupons
appertaining thereto may also be proven in accordance with such
reasonable rules and regulations as may be prescribed by the
Trustee for any series or in any other manner which the Trustee
may deem sufficient.
(b) In the case of Registered Securities, the
ownership of such Securities shall be proved by the Security
Register or by a certificate of the Security Registrar.
SECTION 7.3 Holders to be Treated as Owners. Prior
to due presentation of a Registered Security for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or
the Trustee may deem and treat the Person in whose name any
Registered Security of any series shall be registered upon the
Security Register for such series as the absolute owner of such
Security (whether or not such Security shall be overdue and
notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of
the principal of and, subject to the provisions of this
Indenture, any interest on such Security and for all other
purposes; and none of the Issuer, the Trustee and any agent of
the Issuer or the Trustee shall be affected by any notice to the
contrary. The Issuer, the Trustee and any agent of the Issuer or
the Trustee may treat the Holder of any Unregistered Security and
the Holder of any Coupon as the absolute owner of such
Unregistered Security or Coupon (whether or not such Unregistered
Security or Coupon shall be overdue) for the purpose of receiving
payment thereof or on account thereof and for all other purposes;
and none of the Issuer, the Trustee and any agent of the Issuer
or the Trustee shall be affected by any notice to the contrary.
All such payments so made to any such Person, 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 or Coupon.
None of the Issuer, the Trustee, any paying agent, the
Security Registrar or any other agent of the Issuer or of the
Trustee will have any responsibility or liability for any aspect
of the records relating to or payments made on account of
beneficial ownership interests in a Registered Global Security or
for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests or payments.
SECTION 7.4 Securities Owned by Issuer Deemed Not
Outstanding. In determining whether the Holders of the requisite
aggregate principal amount of Outstanding Securities of one or
more series have concurred in any action under this Indenture,
Securities which are owned by the Issuer or any other obligor on
the Securities with respect to which such determination is being
made or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the
Issuer or any other obligor on the Securities with respect to
which such determination is being made shall be disregarded and
deemed not to be Outstanding for the purposes 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 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 Issuer or any other obligor upon such
Securities or any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the
Issuer or any other obligor on such Securities. In case of a
dispute as to such right, the advice of counsel shall be full
protection in respect of any decision made by the Trustee in
accordance with such advice. Upon request of the Trustee, the
Issuer shall furnish to the Trustee promptly an Officers'
Certificate listing and identifying all Securities, if any, known
by the Issuer to be owned or held by or for the account of any of
the above-described Persons; and, subject to Sections 6.1 and
6.2, the Trustee shall be entitled to accept such Officers'
Certificate as conclusive evidence of the facts therein set forth
and of the fact that all Securities not listed therein are
Outstanding for the purposes of any such determination.
SECTION 7.5 Right of Revocation of Action Taken. At
any time prior to (but not after) the evidencing to the Trustee,
as provided in Section 7.1, of the taking of any action by the
Holders of the requisite percentage in aggregate principal amount
of the Securities of one or more series, as the case may be,
specified in this Indenture or in any applicable Board
Resolution, Officers' Certificate or supplemental indenture in
connection with such action, any Holder of a Security the serial
number of which is shown by the evidence to be included among the
serial numbers of the Securities the Holders of which have
consented to such action may, by filing written notice at the
Corporate Trust Office and upon proof of ownership as provided in
Section 7.2, revoke such action so far as concerns such Security
to the extent such Security would be deemed to be Outstanding
pursuant to Section 7.4. Except as aforesaid, any such action
taken by the Holder of any Security of any series shall be
conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities of such
series issued in exchange or substitution therefor or on
registration of transfer thereof, irrespective of whether or not
any notation in regard thereto is made upon any such Security.
Any action taken by the Holders of the requisite percentage in
aggregate principal amount of the Securities of one or more
series, as the case may be, specified in this Indenture in
connection with such action shall be conclusively binding upon
the Issuer, the Trustee and the Holders of all the Securities of
such one or more series.
With respect to Registered Securities, the Issuer may,
but shall not be obligated to, fix a record date for the purpose
of determining the Securityholders entitled to give their consent
or take any other action authorized or permitted hereunder. If a
record date is fixed, then notwithstanding the immediately
preceding paragraph those Persons who were Holders of such
Registered Securities at such record date (or their duly
designated agents or proxies), and only those Persons, shall be
entitled with respect to such Securities to give such consent or
to revoke any consent previously given or to take any such action
with respect to such Registered Securities, whether or not such
Persons continue to be Holders after such record date; provided,
however, that unless such waiver or consent is obtained from the
Holders, or duly designated proxies, of the requisite principal
amount of Outstanding Securities of a series prior to the date
that is the 120th day after such record date, any such waiver or
consent previously given shall automatically and without further
action by any Holder be cancelled and of no further effect.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent
of Securityholders. The Issuer, when authorized by a resolution
of the Board of Directors (which resolution may provide general
terms or parameters for such action and may provide that the
specific terms of such action may be determined in accordance
with or pursuant to an Issuer Order), 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 as in force at the date of
the execution thereof) 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 add guarantees with respect to the
Securities of one or more series;
(c) to evidence the succession of another entity
to the Issuer, or successive successions, and the assumption by
the successor entity of the covenants, agreements and
obligations of the Issuer pursuant to Article Nine;
(d) to add to the covenants of the Issuer such
further covenants, restrictions, conditions or provisions as the
Issuer and the Trustee shall consider to be for the protection of
the Holders of Securities of any series or Coupons appertaining
thereto, and to make the occurrence, or the occurrence and
continuance, of a default in complying with any such additional
covenant, restriction, condition or provision an Event of Default
permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; in respect of any
such additional covenant, restriction, condition or provision,
such supplemental indenture may provide for a particular period
of grace after default (which period may be shorter or longer
than that allowed in the case of other defaults) or may provide
for an immediate enforcement upon such an Event of Default or may
limit the remedies available to the Trustee upon such an Event of
Default or may limit the right of the Holders of a majority in
aggregate principal amount of the Securities of such series to
waive such an Event of Default;
(e) to cure any ambiguity or to correct or
supplement any provision contained herein or in any supplemental
indenture which may be defective or inconsistent with any other
provision contained herein or in any supplemental indenture, or
to make or add such other provisions as the Issuer may deem
necessary or desirable, provided that no such action shall
adversely affect the interests of the Holders of the Securities
of any series or the Coupons appertaining thereto;
(f) to establish the form and terms of the
Securities of any series or of the Coupons appertaining to such
Securities, as permitted by Sections 2.1 and 2.3;
(g) 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, all as provided in Section 6.11;
(h) to provide (subject to applicable law) for
uncertificated Securities in addition to or in place of
certificated Securities and to make all appropriate changes for
such purposes; provided, however, that the uncertificated
Securities are issued in registered form for purposes of Section
163(f) of the Internal Revenue Code, or in a manner such that the
uncertificated Securities are described in Section 163(f)(2)(B)
of the Internal Revenue Code;
(i) to comply with any requirements of the
Commission in connection with qualifying this Indenture under the
Trust Indenture Act or to modify any provision hereof as shall be
necessary or desirable in accordance with any amendment to the
Trust Indenture Act;
(j) to comply with the requirements of any
securities exchange or interdealer quotation system on which the
Securities of any series are or will be listed; and
(k) to add to or change or eliminate any
provision hereof if such change or elimination is applicable only
to Securities of any series that are first issued after the
effective date thereof.
The Trustee is hereby authorized to join with the
Issuer in the execution of any such supplemental indenture, to
make any further appropriate agreements and stipulations which
may be therein contained and to accept the conveyance, transfer,
assignment, mortgage or pledge of any property or assets
thereunder, 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 may be executed without the consent of the
Holders of any of the Securities at the time Outstanding,
notwithstanding any of the provisions of Section 8.2.
SECTION 8.2 Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced as provided in
Article Seven) of the Holders of not less than a majority in
aggregate principal amount of the Securities of any series at
the time Outstanding affected by such supplemental indenture,
the Issuer, when authorized by a resolution of the Board of
Directors (which resolution may provide general terms or
parameters for such action and may provide that the specific
terms of such action may be determined in accordance with or
pursuant to an Issuer Order), 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 as in force at the date of execution thereof)
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 of the Holders of the Securities of such affected series
or of the Coupons appertaining to such Securities; provided that
no such supplemental indenture shall (a) extend the time of
payment of the principal, or any installment of the principal, of
any Security or reduce the principal amount thereof, or reduce
the rate, alter the method of computation of the rate, or extend
the time of payment of interest thereon, or reduce any amount
payable on the redemption thereof, reduce the amount of, or
postpone the date fixed for, any sinking fund payment or
analogous obligation, or make the principal thereof or the
interest thereon payable in any coin or currency other than that
provided in such Security and the Coupons, if any, appertaining
thereto or in accordance with the terms thereof, or reduce the
amount of the principal of an Original Issue Discount Security
that would be due and payable upon an acceleration of the
maturity thereof pursuant to Section 5.1 or the amount thereof
provable in bankruptcy pursuant to Section 5.2, or change the
place of payment specified for the Securities, or alter the
provisions of Section 11.11 or 11.12 or impair or affect the
right to institute suit for the payment on or with respect to
such Security when due or, if such Security shall so provide, any
right of repayment at the option of the Holder, in each case
without the consent of the Holder of each Security so affected,
(b) reduce the percentage in principal amount of the Outstanding
Securities of such series, the consent of the Holders of which
is required for any such supplemental indenture or for any waiver
provided for in this Indenture, without the consent of the
Holders of each Security so affected, or (c) modify any of the
provisions of this paragraph, except to increase any such
percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
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
series of Securities, or which modifies the rights of the Holders
of Securities of such series or of the Coupons appertaining to
such Securities 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 or of the Coupons
pertaining to Securities of any other series.
Upon the request of the Issuer, accompanied by a Board
Resolution complying with the first paragraph of this Section and
evidence of the consent of the Holders of the Securities of the
applicable series as aforesaid and such other documents, if any,
as may be required by Section 7.1, the Trustee shall join with
the Issuer 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
Holders under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if
such consent shall approve the substance thereof.
Promptly after the execution by the Issuer and the
Trustee of any supplemental indenture pursuant to the provisions
of this Section, the Trustee shall give notice thereof (i) to the
Holders of then Outstanding Registered Securities of each series
affected thereby, by mailing a notice thereof by first-class mail
to such Holders at their addresses as they shall appear on the
Security Register, (ii) if any Unregistered Securities of a
series affected thereby are then Outstanding, to the Holders
thereof who have filed their names and addresses with the Trustee
pursuant to Section 4.4(c)(ii), by mailing a notice thereof by
first-class mail to such Holders at such addresses as were so
furnished to the Trustee and (iii) if any Unregistered Securities
of a series affected thereby are then Outstanding, to all Holders
thereof, by publication of a notice thereof at least once in each
Authorized Newspaper with respect to such series, and in each
case such notice shall set forth in general terms the substance
of such supplemental indenture. Any failure of the Issuer to
give such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental
indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon
the execution of any supplemental indenture pursuant to the
provisions hereof, 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 Issuer 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 supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture
for any and all purposes, and any Holder of Securities
theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 8.4 Documents to be Given to Trustee. The
Trustee, subject to the provisions of Sections 6.1 and 6.2, may
receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed
pursuant to this Article complies with the applicable provisions
of this Indenture.
SECTION 8.5 Notation on Securities in Respect of
Supplemental Indentures. Securities of any series or Coupons
appertaining thereto, if any, authenticated and delivered after
the execution of any supplemental indenture pursuant to the
provisions of this Article may bear a notation in form approved
by the Trustee as to any matter provided for by such supplemental
indenture. If a supplemental indenture changes the terms of a
Security or Coupon, the Trustee may require the Holder of such
Security or Coupon to deliver them to the Trustee, and the
Trustee may place an appropriate notation on the Security or
Coupon, regarding the changed terms and return them to such
Holder. Alternatively, if the Issuer or the Trustee shall so
determine, new Securities of any series or Coupons appertaining
thereto so modified as to conform, in the opinion of the Trustee
and the Issuer, to any modification of this Indenture contained
in any such supplemental indenture may be prepared by the Issuer,
authenticated by the Trustee and delivered in exchange for the
Securities of such series then Outstanding or Coupons
appertaining thereto. Any failure to make any such notation or
to issue a new Security or Coupon shall not, however, in any way
impair or affect the validity of any such supplemental indenture
or any such Security or Coupon the terms of which are changed.
ARTICLE NINE
CONSOLIDATION, MERGER, AND TRANSFER OF ASSETS
SECTION 9.1 Issuer May Consolidate, Merge or Transfer
Assets on Certain Terms. Subject to the provisions of Section
9.2, nothing contained in this Indenture or in the Securities
shall prevent any consolidation or merger of the Issuer with or
into any other Person or Persons (whether or not affiliated with
the Issuer), or successive consolidations or mergers in which the
Issuer or its successor or successors shall be a party or
parties, or shall prevent any transfer, sale, conveyance or lease
of the properties and assets of the Issuer as, or substantially
as, an entirety to any other Person (whether or not affiliated
with the Issuer) authorized to acquire and operate the same or
successive transfers, sales, conveyances or leases in which the
Issuer or its successor or successors shall be a party or
parties; provided, however, and the Issuer hereby covenants and
agrees, that any such consolidation, merger, transfer, sale,
conveyance or lease shall be upon the conditions that (i)
immediately after giving effect to such transaction, no Event of
Default with respect to Securities of any series, or event that
after notice or lapse of time, or both, would become an Event of
Default with respect to Securities of any series, shall have
occurred and be continuing; (ii) the corporation formed by such
consolidation or into which the Issuer is merged or the Person
which acquires by transfer, sale, conveyance or lease the
properties and assets of the Issuer as, or substantially as, an
entirety shall be a corporation or other Person organized under
the laws of the United States of America, any State thereof or
the District of Columbia, and the transferee or successor
corporation, if other than the Issuer, shall expressly assume, by
an indenture supplemental hereto, executed and delivered to the
Trustee for each series of Securities, in form satisfactory to
the Trustee, the due and punctual payment of the principal and
interest, if any, (including all additional amounts, if any,
payable pursuant to this Indenture) on all the Securities and the
performance of every covenant of this Indenture on the part of
the Issuer to be performed or observed; and (iii) the Issuer
shall deliver to the Trustee an Officer's Certificate and an
Opinion of Counsel each stating that such consolidation, merger,
transfer, sale or lease and any such assumption and supplemental
indenture complies with the provisions of this Article Nine.
SECTION 9.2 Successor Person to be Substituted. In
case of any consolidation, merger, transfer, sale, conveyance or
lease pursuant to Section 9.1, and upon the assumption by the
successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee,
of the due and punctual payment of the principal of and interest
on all of the Securities according to their tenor and the due and
punctual performance of all of the covenants and conditions of
this Indenture to be performed by the Issuer, such successor
shall succeed to and be substituted for the Issuer, with the same
effect as if it had been named herein as the party of the first
part, and the Issuer (including any intervening successor to the
Issuer that shall have become the obligor hereunder) shall be
relieved (except in the case of a lease) of any further
obligation under this Indenture and the Securities.
Such successor corporation thereupon may cause to be
signed, and may issue either in its own name or in the name of
the Issuer any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Issuer and
delivered to the Trustee; and upon the order of such successor
corporation instead of the Issuer and subject to all the terms,
conditions and limitations in this Indenture prescribed, the
Trustee or the Authenticating Agent on its behalf shall
authenticate and shall deliver any Securities which previously
shall have been signed and delivered by the officers of the
Issuer to the Trustee or the Authenticating Agent on its behalf
for authentication, and any Securities which such successor
corporation thereafter shall cause to be signed and delivered to
the Trustee or the Authenticating Agent on its behalf for that
purpose. All the Securities so issued shall in all respects have
the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Securities had
been issued at the date of the execution hereof.
In case of any such consolidation, merger, transfer,
sale, conveyance or lease, such changes in phraseology and form
(but not in substance) may be made in the Securities and Coupons,
thereafter to be issued, as may be appropriate.
SECTION 9.3 Opinion of Counsel to be Given to
Trustee. The Trustee, subject to Sections 6.1 and 6.2, may
receive an Opinion of Counsel as conclusive evidence that any
such consolidation, merger, transfer, sale, conveyance or lease
and any such assumption complies with the provisions of this
Article Nine.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge. (A)
Satisfaction and Discharge of Indenture at Option of Issuer. If
at any time (a) the Issuer shall have paid or caused to be paid
the principal of and interest, if any, on all Securities
theretofore authenticated, including all Coupons, if any,
appertaining thereto (other than Securities and/or Coupons
appertaining thereto that have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 2.9 and
other than all Securities or Coupons appertaining thereto for
whose payment money has theretofore be deposited in trust or
segregated and held in trust by the Issuer or any other obligor
thereon and thereafter repaid to the Issuer or discharged from
such trust as provided in Section 10.4), in accordance with the
terms of this Indenture and of such Securities, or (b) as to
Securities and Coupons not so paid, the Issuer shall have
delivered to the Trustee for cancellation all Securities
theretofore authenticated and all Coupons appertaining thereto
(other than Securities and/or Coupons appertaining thereto that
have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 2.9), and if, in any such case the
Issuer shall also pay or cause to be paid all other sums payable
hereunder by the Issuer, then upon the election of the Issuer
this Indenture shall cease to be of further effect and the
Trustee, on demand of the Issuer accompanied by an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent relating to the satisfaction and discharge
contemplated by this provision have been complied with, and at
the expense of the Issuer, shall execute proper instruments
acknowledging such satisfaction and discharging this Indenture.
The Issuer agrees to reimburse the Trustee for any costs or
expenses thereafter reasonably and properly incurred, and to
compensate the Trustee for any services thereafter reasonably and
properly rendered, as the Issuer and the Trustee shall mutually
agree, by the Trustee in connection with this Indenture or the
Securities.
(B) Satisfaction or Discharge and Defeasance of a Series. (1)
Satisfaction and Discharge of a Series. If at any time (a) the
Issuer shall have paid or caused to be paid the principal of and
interest, if any, on all the Securities of any particular series
theretofore authenticated, including all Coupons, if any,
appertaining thereto (other than Securities of such series and/or
Coupons appertaining thereto which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 2.9 and other than Securities of such series or Coupons
appertaining thereto for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Issuer
or any other obligor thereon and thereafter repaid to the Issuer
or discharged from such trust as provided in Section 10.4), in
accordance with the terms of this Indenture and the Securities of
such series, or (b) as to Securities of any series and Coupons
appertaining thereto not so paid, the Issuer shall have delivered
to the Trustee for cancellation all Securities of such series
theretofore authenticated and all Coupons appertaining thereto
(other than any Securities of such series and/or Coupons
appertaining thereto which shall have been destroyed, lost or
stolen and which shall have been replaced or paid as provided in
Section 2.9) or (c) except as specified pursuant to Section 2.3
for a particular series of Securities, as to Securities of any
series and Coupons appertaining thereto not so paid or delivered
for cancellation, in the case of any series of Securities as to
which the exact amount (including the currency of payment) of
principal of and interest due can be determined at the time of
making the deposit referred to in clause (ii) below, (i) all the
Securities of such series and all Coupons appertaining thereto
shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption, and (ii) the
Issuer shall have irrevocably deposited or caused to be deposited
with the Trustee as trust funds, specifically pledged as security
for and dedicated solely to the benefit of the Holders of the
Securities of such series, with reference to this Section
10.1(B)(1), an amount in (i) cash in the applicable currency in
an amount, or (ii) Government Obligations, maturing as to
principal and interest at such times and in such amounts as will
insure the availability of cash in the applicable currency, or
(iii) a combination thereof, sufficient in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay (A) the principal and interest on all Securities
of such series then Outstanding and Coupons appertaining thereto
on each date that such principal or interest is due and payable
and (B) any mandatory sinking fund or analogous payments on the
dates on which such payments are due and payable in accordance
with the terms of this Indenture and the Securities of such
series; and if, in the case of (a), (b) or (c), the Issuer shall
also pay or cause to be paid all other sums payable hereunder by
the Issuer with respect to the Securities of such series, then
the Issuer shall be deemed to have satisfied and discharged the
entire indebtedness on all Securities of such series and this
Indenture shall, subject to Section 10.6, cease to be of further
effect with respect to the Securities of such series (except as
to (i) rights of registration of transfer and exchange of
Securities and of Coupons appertaining thereto, (ii) substitution
of mutilated, defaced, destroyed, lost or stolen Securities or
Coupons, (iii) the rights of Holders of Securities of such series
and Coupons appertaining thereto to receive payments of principal
thereof and interest thereon, upon the original stated due dates
therefor (but not upon acceleration), and remaining rights of
such Holders to receive mandatory sinking fund or analogous
payments, if any, solely from such trust fund, (iv) the rights,
obligations, duties and immunities of the Trustee hereunder, (v)
the rights of Holders of Securities of such series and Coupons
appertaining thereto as beneficiaries hereof with respect to the
property so deposited with the Trustee and payable to all or any
of them, (vi) the obligations of the Issuer under Sections 3.2,
3.3, 3.4, 4.1, 6.10 and 9.2, (vii) the Issuer's right to effect
any redemption contemplated by this Section 10.1(A), and (viii)
this Article 10 pertinent to such continuing obligations
including the obligations of the Trustee under Section 10.2); and
the Trustee, on demand of the Issuer accompanied by an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture with respect to the
Securities of such series have been complied with, and at the
cost and expense of the Issuer, shall execute proper instruments
acknowledging such satisfaction and discharge of this Indenture
with respect to the Securities of such series; provided that the
rights of Holders of the Securities of such series and Coupons
appertaining thereto to receive amounts in respect of principal
of and interest on the Securities of such series and Coupons
appertaining thereto held by them shall not be delayed longer
than required by then applicable mandatory rules or policies of
any national securities exchange upon which the Securities of
such series are listed. The Issuer agrees to reimburse the
Trustee for any costs or expenses thereafter reasonably and
properly incurred and to compensate the Trustee for any services
thereafter reasonably and properly rendered by the Trustee in
connection with this Indenture or the Securities of such series.
(2) Defeasance and Discharge of a Series. The
following provisions shall apply to the Securities of each series
unless specifically otherwise provided in the Board Resolution,
Officers' Certificate or supplemental indenture relating thereto
provided pursuant to Section 2.3. In addition to discharge of
this Indenture pursuant to subsection (A) of this Section or
satisfaction and discharge of this Indenture with respect to
Securities of a particular series pursuant to subsection (B)(1)
of this Section, in the case of any series of Securities as to
which the exact amount (including the currency of payment) of
principal of and interest due can be determined at the time of
making the deposit referred to in subparagraph (a) below, the
Issuer shall be deemed to have paid and discharged the entire
indebtedness on all the Securities of such series and the Coupons
appertaining thereto on the 91st day after the date of such
deposit (hereinafter, "defeasance and discharge"), and the
provisions of this Indenture with respect to the Securities of
such series and Coupons appertaining thereto shall, subject to
Section 10.6, cease to be in effect (except as to (i) rights of
registration of transfer and exchange of Securities of such
series and of Coupons appertaining thereto, (ii) substitution of
mutilated, defaced, destroyed, lost or stolen Securities or
Coupons, (iii) the rights of Holders of Securities of such series
and Coupons appertaining thereto to receive payments of principal
thereof and interest thereon, upon the original stated due dates
therefor (but not upon acceleration), and remaining rights of
such Holders to receive mandatory sinking fund or analogous
payments, if any, solely from the trust fund referred to in
subparagraph (a) below, (iv) the rights, obligations, duties and
immunities of the Trustee hereunder, (v) the rights of Holders of
Securities of such series and Coupons appertaining thereto as
beneficiaries hereof with respect to the property so deposited
with the Trustee and payable to all or any of them, (vi) the
obligations of the Issuer under Sections 3.2, 3.3, 3.4, 4.1, 6.10
and 9.2, and (vii) this Article 10 pertinent to such continuing
obligations including the obligations of the Trustee under
Section 10.2); and the Trustee, at the cost and expense of the
Issuer, shall, at the Issuer's request, execute proper
instruments acknowledging the same, if:
(a) the Issuer shall have irrevocably deposited or
caused to be irrevocably deposited with the Trustee as a trust
fund specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of the Securities of such series
and Coupons appertaining thereto, and with reference to this
Section 10.1(B)(2) (i) cash in the applicable currency in an
amount, or (ii) Government Obligations, maturing as to principal
and interest at such times and in such amounts as will insure the
availability of cash in the applicable currency, or (iii) a
combination thereof, sufficient in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay
(A) the principal and interest on all Securities of such series
then Outstanding and Coupons appertaining thereto on each date
that such principal or interest is due and payable and (B) any
mandatory sinking fund or analogous payments on the dates on
which such payments are due and payable in accordance with the
terms of this Indenture and the Securities of such series;
(b) no Event of Default or event which, with notice or
lapse of time or both, would become an Event of Default with
respect to the Securities of such series shall have occurred and
be continuing on the date of such deposit or, insofar as clauses
(g) and (h) of Section 5.1 are concerned, at any time during the
period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed
satisfied until the expiration of such period and that if such
condition is not satisfied the Trustee shall return such deposit
to the Issuer upon request);
(c) such deposit and defeasance and discharge shall
not result in a breach or violation of, or constitute a default
under, this Indenture or any other agreement or instrument to
which the Issuer is a party or by which it is bound;
(d) such deposit and defeasance and discharge shall
not cause any Securities of such series then listed on any
national securities exchange registered under the Exchange Act to
be delisted;
(e) the Issuer shall have delivered to the Trustee an
Opinion of Counsel to the effect that (i) such deposit shall not
result in the Issuer, the Trustee or such trust constituting an
"investment company" under the Investment Company Act of 1940, as
amended, and (ii) either (A) there has been a change in the
applicable federal income tax law or (B) the Issuer has received
from, or there has been published by, the Internal Revenue
Service a ruling, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders
of the Securities of such series then Outstanding and Coupons
appertaining thereto will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and
defeasance 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 defeasance and
discharge had not occurred; and
(f) the Issuer shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to the
defeasance contemplated by this paragraph have been complied
with.
(3) Actions Not Exclusive. The Issuer may exercise its
option under Section 10.1(B)(1) or (B)(2) with respect to any
series notwithstanding the prior exercise of its option under
Section 10.1(C) with respect to the Securities of any series.
(C) Covenant Defeasance. The following provisions
shall apply to the Securities of each series unless specifically
otherwise provided in the Board Resolution, Officers' Certificate
or supplemental indenture relating thereto provided pursuant to
Section 2.3. The Issuer shall be released from its obligations
under Sections 3.5, 3.6, 3.7, 9.1 and, to the extent specified
pursuant to Section 2.3(20), any covenants established with
respect to the Securities of a particular series and any Coupons
appertaining thereto, and Sections 5.1(e) and (f) and such other
Events of Default as are specified pursuant to Section 2.3(20)
for such series shall not be deemed to be Events of Default with
respect to the Securities Outstanding on and after the date the
conditions set forth below are satisfied (hereinafter, "covenant
defeasance"). Covenant defeasance means that, with respect to
the Outstanding Securities of such series, the Issuer may omit to
comply with and shall have no liability in respect of any term,
condition or limitation set forth in Sections 3.5, 3.6, 3.7, 9.1
and any such covenants established pursuant to subsection (20) of
Section 2.3, whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or Article, by
reason of any reference in such Section or Article to any other
provision herein or by reason of any reference to any such
Section or Article in any other document, and such omission to
comply shall not constitute an Event of Default under Section 5.1
with respect to the Outstanding Securities of such series, but
the remainder of this Indenture and other Outstanding Securities
and Coupons shall be unaffected thereby. The following shall be
the conditions to application of this subsection (C):
(a) the Issuer shall have irrevocably deposited or
caused to be irrevocably deposited with the Trustee as a trust
fund specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of the Securities of such series
and Coupons appertaining thereto, (i) cash in an amount, or (ii)
Government Obligations, maturing as to principal and interest at
such times and in such amounts as will insure the availability of
cash, or (iii) a combination thereof, sufficient in the opinion
of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay (A) the principal and interest on all Securities
of such series then Outstanding and Coupons appertaining thereto
on each date that such principal or interest is due and payable
and (B) any mandatory sinking fund or analogous payments on the
dates on which such payments are due and payable in accordance
with the terms of this Indenture and the Securities of such
series;
(b) no Event of Default or event which, with notice or
lapse of time or both, would become an Event of Default with
respect to the Securities of such series shall have occurred and
be continuing on the date of such deposit or, insofar as clauses
(g) and (h) of Section 5.1 are concerned, at any time during the
period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed
satisfied until the expiration of such period and that if such
condition is not satisfied the Trustee shall return such deposit
to the Issuer upon request);
(c) such deposit and covenant defeasance shall not
result in a breach or violation of, or constitute a default
under, this Indenture or any other agreement or instrument to
which the Issuer is a party or by which it is bound;
(d) such deposit and covenant defeasance shall not
cause any Securities of such series then listed on any national
securities exchange registered under the Exchange Act to be
delisted;
(e) the Issuer shall have delivered to the Trustee an
Opinion of Counsel to the effect that (i) such deposit shall not
result in the Issuer, the Trustee or such trust constituting an
"investment company" under the Investment Company Act of 1940, as
amended, and (ii) the Holders of the Securities of such series
then Outstanding and Coupons appertaining thereto will not
recognize income, gain or loss for federal income tax purposes as
a result of such deposit and covenant defeasance and will be
subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
deposit and covenant defeasance had not occurred; and
(f) the Issuer shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to
such covenant defeasance have been complied with.
SECTION 10.2 Application by Trustee of Funds Deposited
for Payment of Securities. Subject to Section 10.4, all moneys
and Government Obligations deposited with the Trustee pursuant to
Section 10.1(B) or (C) in respect of the Outstanding Securities
of a particular series and the Coupons appertaining thereto shall
be irrevocably held in trust and applied by it to the payment,
either directly or through any paying agent (including the Issuer
acting as its own paying agent), to the Holders of such
Securities and Coupons of all sums due and to become due thereon
for principal and interest; but such money need not be segregated
from other funds except to the extent required by law or except
if the Issuer is acting as its own paying agent.
Anything in this Article 10 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Issuer from time to time
upon request of the Issuer any money or Government Obligations
held by it as provided by Section 10.1 that, as expressed in a
certificate of a firm of independent public accountants delivered
to the Trustee, are in excess of the amount thereof that would
then have been required to be deposited for the purpose for which
such money or Government Obligations were deposited or received,
provided that such delivery can be made without liquidating any
Government Obligations.
SECTION 10.3 Repayment of Moneys Held by Paying
Agent. In connection with the satisfaction and discharge of this
Indenture with respect to the Securities of any series, all
moneys then held by any paying agent under the provisions of this
Indenture with respect to such series of Securities shall, upon
demand of the Issuer, be paid to the Trustee and thereupon such
paying agent shall be released from all further liability with
respect to such moneys.
SECTION 10.4 Return of Moneys Held by Trustee and
Paying Agent Unclaimed for Two Years. Any moneys deposited with
or paid to the Trustee or any paying agent or then held by the
Issuer or any other obligor in trust for the payment of the
principal of or interest on any Security of any series or Coupons
appertaining thereto and not applied but remaining unclaimed for
two years after the date upon which such principal or interest
shall have become due and payable, shall, upon the written
request of the Issuer and unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed
property law, be repaid to the Issuer by the Trustee or such
paying agent or if held by the Issuer or any other obligor on the
Securities shall be discharged from such trust, and the Holder of
the Securities of such series and of any Coupons appertaining
thereto shall, unless otherwise required by mandatory provisions
of applicable escheat or abandoned or unclaimed property laws,
thereafter look only to the Issuer for any payment which such
Holder may be entitled to collect, and all liability of the
Trustee or any paying agent with respect to such moneys and all
liability of the Issuer or such obligor as trustee thereof shall
thereupon cease; provided, however, that the Trustee or such
paying agent, before being required to make any such repayment
with respect to moneys deposited with it for any payment (a) in
respect of Registered Securities of any series, shall at the
expense of the Issuer, mail by first-class mail to Holders of
such Securities at their addresses as they shall appear on the
Security Register for the Securities of such series, (b) in
respect of Unregistered Securities of any series, shall at the
expense of the Issuer, mail by first-class mail to Holders of
such Securities who have filed their names and addresses with the
Trustee pursuant to Section 4.4(c)(ii) at such addresses as were
so furnished to the Trustee and (c) in respect of Unregistered
Securities of any series, shall at the expense of the Issuer
cause to be published once, in each Authorized Newspaper with
respect to such series, notice that such moneys remain unclaimed
and that, after a date specified therein, which shall not be less
than 30 days from the date of such mailing or publication, any
unclaimed balance of such moneys then remaining will, unless
otherwise required by mandatory provisions of applicable escheat
or abandoned or unclaimed property laws, be repaid to the Issuer.
SECTION 10.5 Indemnity for Government Obligations.
The Issuer shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the Government
Obligations deposited pursuant to Section 10.1 or the principal
or interest received in respect of such Government Obligations,
other than any such tax, fee or other charge which by law is for
the account of the Holders of the Securities and Coupons for
whose benefit such Government Obligations are held.
SECTION 10.6 Reinstatement. If the Trustee or
paying agent is unable to apply any money or Government
Obligation in accordance with this Article 10 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, the Issuer's obligations
under this Indenture and the Securities of the affected series
shall be revived and reinstated as though no deposit had occurred
pursuant to this Article 10 until such time as the Trustee or
paying agent is permitted to apply all such money or Government
Obligations in accordance with this Article 10; provided,
however, that, if the Issuer has made any payment of interest on
or principal of any Securities of such affected series because of
the reinstatement of its obligations, the Issuer shall be
entitled, at its election, (a) to receive from the Trustee or
paying agent, as applicable, that portion of such money or
Government Obligations equal to the amount of such payment or (b)
to be subrogated to the rights of the Holders of the Securities
of such affected series to receive such payment from the money or
Government Obligations held by the Trustee or paying agent.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers
and Directors of Issuer Exempt from Individual Liability. No
recourse under or upon any obligation, covenant or agreement
contained in this Indenture, or in any Security or Coupon, or
because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such, or against any past, present
or future stockholder, officer, director, employee or partner, as
such, of the Issuer or of any successor, either directly or
through the Issuer or any successor, under any rule of law, stat
ute 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 and the Coupons appertaining thereto
by the Holders thereof (and by any beneficial owners of the
Securities and Coupons held through such Holders) and as part of
the consideration for the issue of the Securities and the Coupons
appertaining thereto.
SECTION 11.2 Provisions of Indenture for the Sole
Benefit of Parties and Holders of Securities and Coupons.
Nothing in this Indenture, in the Securities or the Coupons
appertaining thereto, expressed or implied, shall give or be
construed to give to any person, firm or corporation, other than
the parties hereto and their successors and the Holders of the
Securities or Coupons, if any, any legal or equitable right,
remedy or claim under this Indenture or under any covenant or
provision herein contained, all such covenants and provisions
being for the sole benefit of the parties hereto and their
successors and of the Holders of the Securities or Coupons, if
any.
SECTION 11.3 Successors and Assigns of Issuer Bound
by Indenture. All the covenants, stipulations, promises and
agreements in this Indenture contained by or on behalf of the
Issuer shall bind its successors and assigns, whether so
expressed or not.
SECTION 11.4 Notices and Demands on Issuer, Trustee
and Holders of Securities and Coupons. 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 any Holder of
Securities of any series or Coupons appertaining thereto to or
upon the Issuer may be given or served in person or by being
deposited postage prepaid in the United States mail, first-class
mail (except as otherwise specifically provided herein),
addressed (until another address of the Issuer is filed by the
Issuer with the Trustee) to Equitable of Iowa Companies, 604
Locust Street, P.O. Box 1635, Des Moines, Iowa 50306-1635,
Attention: Secretary. Any notice, direction, request or demand
by the Issuer or any Holder of Securities of any series or
Coupons appertaining thereto to or upon the Trustee may be given
or served in person or by being deposited postage prepaid in the
United States mail, first-class mail (except as otherwise
specifically provided herein), addressed (until another address
of the Trustee is filed by the Trustee with the Issuer) to The
First National Bank of Chicago, One First National Plaza-Suite
0126, Chicago, Illinois 60670-0126, Attention: Corporate Trust
Services Division. Any notice required or permitted to be given
or served by the Issuer or by the Trustee to or upon (i) any
Holders of Registered Securities of any series or any Holders of
Unregistered Securities who have filed their names and addresses
with the Trustee pursuant to Section 4.4(c)(ii), may be given or
served by being deposited in the United States mail, first-class
mail (except as otherwise specifically provided herein),
addressed at their addresses as they shall appear on the Security
Register or at the addresses so filed, respectively, and (ii) any
Holders of other Unregistered Securities, by publication at least
once in each Authorized Newspaper with respect to such series.
In any case where notice to the Holders of Securities
is given by mail, neither the failure to mail such notice, nor
any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other
Holders. Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the person entitled to
receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice
by Holders shall be filed with the Trustee, but such filing shall
not be a condition precedent to the validity of any action taken
in reliance upon such waiver.
In case, by reason of the suspension of or
irregularities in regular mail service, it shall be impracticable
to mail notice to the Issuer when such notice is required to be
given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be reasonably satisfactory
to the Trustee shall be deemed to be a sufficient giving of such
notice.
SECTION 11.5 Officers' Certificates and Opinions of
Counsel; Statements to be Contained Therein. Upon any
application or demand by the Issuer to the Trustee to take any
action under any of the provisions of this Indenture, the Issuer
shall furnish to the Trustee an Officers' Certificate stating
that all conditions precedent provided for in this Indenture
relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel
all such conditions precedent have been complied with, except
that in the case of any such application or demand as to which
the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular
application or demand, no additional certificate or opinion need
be furnished.
Each certificate or opinion provided for in this
Indenture (other than a certificate provided pursuant to Section
4.3(d)) and delivered to the Trustee with respect to compliance
with a condition or covenant provided for in this Indenture shall
include (a) a statement that the person making such certificate
or opinion has read such covenant or condition, (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 an officer of
the Issuer 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,
(information with respect to which is in the possession of the
Issuer), upon the certificate, statement or opinion of or
representations by an officer or officers of the Issuer, 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, opinion or representation
of an officer of the Issuer or of counsel may be based, insofar
as it relates to accounting matters, upon a certificate or
opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, 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, opinion or representation
may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of
public accountants filed with and directed to the Trustee shall
contain a statement that such firm is independent.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be
so certified or covered by one document, but one such Person may
certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one
or several documents.
Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
SECTION 11.6 Payments Due on Saturdays, Sundays and
Holidays. If the date of maturity of interest on or principal of
the Securities of any series or any Coupons appertaining thereto
or the date fixed for redemption or repayment of any such
Security or Coupon shall not be a Business Day, then payment of
interest or principal need not be made on such date, but may be
made on the next succeeding Business Day with the same force and
effect as if made on the date of maturity or the date fixed for
redemption or repayment, and no interest shall accrue for the
period after such date.
SECTION 11.7 Conflict of Any Provision of Indenture
with Trust Indenture Act of 1939. If and to the extent that any
provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included herein by the
Trust Indenture Act of 1939 (as it may be amended from time to
time), such required provision shall control.
SECTION 11.8 New York Law to Govern. This Indenture
and each Security and Coupon shall be deemed to be a contract
under the laws of the State of New York, and for all purposes
shall be construed in accordance with the laws of such state,
except as may otherwise be required by mandatory provisions of
law.
SECTION 11.9 Counterparts. 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.
SECTION 11.10 Effect of Headings. The Article and
Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 11.11 Securities in a Foreign Currency or in
ECU. Unless otherwise specified in or pursuant to a Board
Resolution, a supplemental indenture or an Officers' Certificate
delivered pursuant to Section 2.3 with respect to a particular
series of Securities, whenever for purposes of this Indenture any
action may be taken by the Holders of a specified percentage in
aggregate principal amount of Securities of one or more series at
the time Outstanding and, at such time, there are Outstanding
Securities of any series which are denominated in a Foreign
Currency (including ECUs), then the principal amount of
Securities of such series which shall be deemed to be Outstanding
for the purpose of taking such action shall be the amount of
Dollars that could be obtained for such amount at the Market
Exchange Rate on the date that evidence of such action taken is
delivered to the Trustee in accordance with Section 7.1 hereof.
For purposes of this Section, "Market Exchange Rate" shall mean
the noon Dollar buying rate in New York City for cable transfers
of such Foreign Currency as published by the Federal Reserve Bank
of New York; provided, however, that in the case of ECUs, Market
Exchange Rate shall mean the rate of exchange determined by the
Commission of the European Communities (or any successor thereto)
as published in the Official Journal of the European Communities
(such publication or any successor publication, the "Journal").
If such Market Exchange Rate is not available for any reason with
respect to such Foreign Currency or ECUs, the Trustee shall use,
in its sole discretion and without liability on its part, such
quotation of the Federal Reserve Bank of New York or, in the case
of ECUs, the rate of exchange as published in the Journal, as of
the most recent available date, or quotations or, in the case of
ECUs, rates of exchange from one or more major banks in The City
of New York or in the country of issue of the Foreign Currency in
question, which for purposes of the ECU shall be Brussels,
Belgium, or such other quotations or, in the case of ECU, rates
of exchange as the Trustee shall deem appropriate. The
provisions of this paragraph shall also apply in connection with
any other action taken by the Holders of Securities pursuant to
the terms of this Indenture, including without limitation Section
5.1.
All decisions and determinations of the Trustee
regarding the Market Exchange Rate or any alternative
determination provided for in the preceding paragraph shall be in
its sole discretion and shall, in the absence of manifest error,
be conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Issuer and all Holders.
SECTION 11.12 Judgment Currency. The Issuer agrees,
to the fullest extent that it may effectively do so under
applicable law, that (a) if for the purpose of obtaining judgment
in any court it is necessary to convert the sum due in respect of
the principal of or interest on the Securities of any series (the
"Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used
shall be the rate at which, in accordance with normal banking
procedures, the Trustee could purchase in The City of New York
the Required Currency with the Judgment Currency on the day on
which final unappealable judgment is entered, unless such day is
not a New York Banking Day, in which case, to the extent
permitted by applicable law, the rate of exchange used shall be
the rate at which, in accordance with normal banking procedures,
the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the New York Banking Day
next preceding the day on which final unappealable judgment is
entered and (b) its obligations under this Indenture and the
Securities of such series to make payments in the Required
Currency (i) shall not be discharged or satisfied by any tender,
or any recovery pursuant to any judgment (whether or not entered
in accordance with clause (a)), in any currency other than the
Required Currency, except to the extent that such tender or
recovery shall result in the effective receipt by the payee of
the full amount of the Required Currency expressed to be payable
in respect of such payments, (ii) shall be enforceable as an
alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which
such effective receipt shall fall short of the full amount of the
Required Currency so expressed to be payable and (iii) shall not
be affected by judgment being obtained for any other sums due
under this Indenture. For purposes of the foregoing, "New York
Banking Day" means any day except a Saturday, Sunday or a legal
holiday in The City of New York or a day on which banking
institutions in The City of New York are authorized or required
by law or executive order to close.
SECTION 11.13 Waiver by Holders. The Issuer may omit
in any particular instance to comply with any covenant or
provision of this Indenture applicable to the Securities of any
series, if before or after the time for such compliance the
Holders of a majority in aggregate principal amount of the
Securities of such series then Outstanding shall either waive
such compliance in such instance or generally waive compliance
with such covenant or provision, but no such waiver shall extend
to or affect such covenant or provision except to the extent so
expressly waived, and, until such waiver shall become effective,
the obligations of the Issuer and the duties of the Trustee with
respect to any such covenant or provision shall remain in full
force and effect; provided, however, that the procedure set forth
in this Section shall not be available with respect to the waiver
of any covenant or provision hereof which cannot be amended or
modified without the consent of the Holder of each Security of
such affected series.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. 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 pursuant to Section 2.3 for Securities of
any series.
SECTION 12.2 Notice of Redemption; Partial
Redemptions. Notice of redemption to the Holders of Registered
Securities of any series to be redeemed as a whole or in part
shall be given by mailing notice of such redemption by first
class mail, postage prepaid, at least 30 days and not more than
60 days prior to the date fixed for redemption, to such Holders
at their last addresses as they shall appear upon the Security
Register. Notice of redemption to the Holders of Unregistered
Securities of any series to be redeemed as a whole or in part,
who have filed their names and addresses with the Trustee
pursuant to Section 4.4(c)(ii), shall be given by mailing notice
of such redemption by first class mail, postage prepaid, at least
30 days and not more than 60 days prior to the date fixed for
redemption, to such Holders at such addresses as were so
furnished to the Trustee (and, in the case of any such notice
given by the Issuer, the Trustee shall make such information
available to the Issuer for such purpose). Notice of redemption
to all other Holders of Unregistered Securities of any series
shall be published in each Authorized Newspaper with respect to
such series once in each of three successive calendar weeks, the
first publication to be not less than 30 days nor more than 60
days prior to the date fixed for redemption. 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 any 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
and, in the case of Securities with Coupons attached thereto, of
all Coupons appertaining thereto maturing after the date fixed
for redemption, that such redemption is pursuant to the mandatory
or optional sinking or other analogous 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, that on and after said
date interest thereon or on the portions thereof to be redeemed
will cease to accrue (unless the Issuer defaults in making such
redemption payment or the paying agent is prohibited from making
such payment pursuant to the terms of this Indenture) and that no
representation is made as to the correctness or accuracy of the
CUSIP number, if any, listed in such notice or printed on the
Securities. In case any Security is to be redeemed in part only,
the notice of redemption shall state the portion of the principal
amount thereof to be redeemed and shall state that on and after
the date fixed for redemption, upon surrender of such Security
and applicable Coupons, a new Security or Securities of such
series in authorized denominations for an aggregate principal
amount equal to the unredeemed portion thereof and applicable
Coupons will be issued.
The notice of redemption of Securities of any series to
be redeemed at the option of the Issuer shall be given by the
Issuer or, at the Issuer's request, by the Trustee in the name
and at the expense of the Issuer, in which case the Issuer will
provide the Trustee with the information required to be included
in such notice by the preceding paragraph.
On or before the redemption date specified in the
notice of redemption given as provided in this Section, the
Issuer will deposit with the Trustee or with one or more paying
agents (or, if the Issuer is acting as its own paying agent, set
aside, segregate and hold in trust as provided in Section 3.4) an
amount of money sufficient to redeem on the redemption date all
the Securities of any series so called for redemption (other than
Securities or portions of Securities called for redemption which
have been delivered by the Issuer to the Trustee for cancellation
as provided in Section 12.5) at the applicable redemption price,
together with accrued interest to the date fixed for redemption.
The Issuer will deliver to the Trustee, at least 10 days prior to
the date on which notice of redemption is to be given under this
Section, an Officers' Certificate stating the aggregate principal
amount of Securities of each series and, if applicable, the
Tranche (as hereinafter deferred) to be redeemed. In case of a
redemption at the option of the Issuer prior to the expiration of
any restriction on such redemption, the Issuer shall deliver to
the Trustee, prior to the giving of any notice 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 like tenor and terms of any series (a
"Tranche") are to be redeemed, the Trustee shall select the
particular Securities of such Tranche to be redeemed pro rata or
by lot or by a method that complies with the applicable legal and
securities exchange or interdealer quotation system requirements,
if any, and that the Trustee considers fair and appropriate and
in accordance with the methods generally used at the time of
selection by fiduciaries in similar circumstances. Securities
may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any
multiple thereof. If less than all Securities of unlike tenor
and terms of a series are to be redeemed, the particular Tranche
of Securities to be redeemed shall be selected by the Issuer.
The Trustee shall promptly notify the Issuer in writing of the
Securities of such series selected for redemption and, in the
case of any Securities selected for partial redemption, the
principal amount thereof to be redeemed. For all purposes of
this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities 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 12.3 Payment of Securities Called for
Redemption. If notice of redemption has been given as provided
in Section 12.2, 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
Issuer shall default in the payment of such Securities at the
applicable 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, the unmatured
Coupons, if any, appertaining thereto shall be void and, except
as provided in Sections 6.5, 10.2 and 10.4, 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 applicable 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, together with all Coupons, if
any, appertaining thereto maturing after the date fixed for
redemption, such Securities or the specified portions thereof
shall be paid and redeemed by the Issuer 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, in the case of Securities with Coupons attached
thereto, to the Holders of the Coupons for such interest upon
surrender thereof or, in the case of Registered Securities, to
the Holders of such Registered Securities registered as such on
the relevant Record Date, subject to the terms and provisions of
Sections 2.3 and 2.7.
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 or Yield to Maturity
(in the case of an Original Issue Discount Security) borne by
such Security.
If any Security with Coupons attached thereto is
surrendered for redemption and is not accompanied by all
appurtenant Coupons maturing after the date fixed for redemption,
the surrender of such missing Coupon or Coupons may be waived by
the Issuer and the Trustee, if there be furnished to each of them
such security or indemnity as they may require to save each of
them harmless.
Upon presentation of any Security redeemed in part
only, the Issuer shall execute and the Trustee shall authenticate
and deliver to or on the order of the Holder thereof, at the
expense of the Issuer, a new Security or Securities of such
series (together with all Coupons, if any, appertaining thereto),
of authorized denominations, in principal amount equal to the
unredeemed portion of the Security so presented.
SECTION 12.4 Exclusion of Certain Securities from
Eligibility for Selection for Redemption. 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 10 days
prior to the last date on which notice of redemption may be given
as being owned of record and beneficially by, and not pledged or
hypothecated by, either (a) the Issuer 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 Issuer.
SECTION 12.5 Mandatory and Optional Sinking Funds.
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 Issuer 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 Issuer or receive credit for Securities of
such series (not previously so credited) theretofore purchased or
otherwise acquired (except as aforesaid) by the Issuer 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 with
respect to such series or (c) receive credit for Securities of
such series (not previously so credited) redeemed by the Issuer
through any optional redemption provision contained in the terms
of such series. 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 45th day next preceding each sinking
fund payment date for any series, the Issuer will deliver to the
Trustee an Officers' Certificate (which need not contain the
statements required by Section 11.5) (a) specifying the portion
of the mandatory sinking fund payment due on such date to be
satisfied by payment of cash and the portion to be satisfied by
credit as provided in the preceding paragraph and the basis for
such credit, (b) stating that none of the Securities of such
series or payments in respect thereof to be so credited 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 Issuer intends
to exercise its right to make an optional sinking fund payment on
such date with respect to such series and, if so, specifying the
amount of such optional sinking fund payment which the Issuer
intends to pay on or before the next succeeding sinking fund
payment date. Any Securities of such series to be so credited
and required to be delivered to the Trustee in order for the
Issuer 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 Issuer shall
become unconditionally obligated to make all the cash payments or
other deliveries therein referred to, if any, on or before the
next succeeding sinking fund payment date. Failure of the
Issuer, on or before any such 45th day, to deliver such Officers'
Certificate and Securities (subject to the parenthetical above
concerning later delivery of the Securities to the Trustee)
specified in this paragraph, if any, shall not constitute a
default but shall constitute, on and as of such 45th day, the
irrevocable election of the Issuer that (i) 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 or other
amounts provided in the preceding paragraph in respect thereof
and (ii) the Issuer will make no optional sinking fund payment
with respect to such series on such date as provided in this
Section.
If the sinking fund payment or payments (mandatory or
optional or both) for a series 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 (or the equivalent thereof in any Foreign Currency or
ECU), or if the amount of such payments plus any such unused
balance shall be $50,000 (or the equivalent thereof in any
Foreign Currency or ECU) or less and the Issuer shall so request
with respect to the Securities of such series, such cash shall be
applied on the next succeeding sinking fund payment date to the
redemption of Securities of such series at the applicable sinking
fund redemption price, together with accrued interest to the date
fixed for redemption. If such amount shall be $50,000 (or the
equivalent thereof in any Foreign Currency or ECU) or less and
the Issuer makes no such request, then such amount shall be
carried over until a sum in excess of $50,000 (or the equivalent
thereof in any Foreign Currency or ECU) with respect to such
series is available. The Trustee shall select, in the manner
provided in Section 12.2, 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 Issuer) inform the Issuer 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 in accordance with
Section 12.4. The Trustee, in the name and at the expense of the
Issuer (or the Issuer, 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 12.2 (and with the effect provided in Section 12.3) for
the redemption of Securities of such series in part at the
option of the Issuer. 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 a 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.
Unless otherwise provided for, on or before each
sinking fund payment date, the Issuer shall pay to the Trustee in
cash or shall otherwise provide for the payment of all interest
accrued to the date fixed for redemption on Securities to be
redeemed on such sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed
Securities of any series with sinking fund moneys or give any
notice of redemption of Securities of such series by operation of
the sinking fund for such series during the continuance of a
default in the payment of interest on the Securities of such
series or of any Event of Default with respect to such series
except that, if notice of redemption of any Securities of such
series shall theretofore have been given, the Trustee shall
redeem or cause to be redeemed such Securities, provided that the
Trustee or one or more paying agents shall have received from the
Issuer 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 Five and held for the payment
of all Securities of such series. In case such Event of Default
shall have been waived as provided in Section 5.10 or the default
cured on or before the 30th day preceding any sinking fund
payment date, such moneys shall thereafter be applied on such
sinking fund payment date in accordance with this Section to the
redemption of Securities of such series.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and delivered as of January 17,
1995.
EQUITABLE OF IOWA COMPANIES
By:__________________________________
Name:______________________________
Title:_________________________________
THE FIRST NATIONAL BANK OF CHICAGO,
AS TRUSTEE
By:_________________________________
Name:______________________________
Title:________________________________
EXHIBIT 5 TO
REGISTRATION STATEMENT
January 17, 1995
Equitable of Iowa Companies
P.O. Box 1635
Des Moines, Iowa 50306-1635
Re: $125,000,000 in Debt Securities of
Equitable of Iowa Companies
Ladies and Gentlemen:
We have acted as counsel to Equitable of Iowa Companies, an Iowa
corporation ("EIC") in connection with the registration statement on Form S-3
(the "Registration Statement") being filed by EIC with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act") relating to the registration of $125,000,000
in debt securities (the "Debt Securities") of EIC. The Debt Securities will
be issued under an Indenture (the "Indenture") between EIC and The First
National Bank of Chicago as Trustee in substantially the form filed with the
Commission as an exhibit to the Registration Statement.
In rendering this opinion, we have examined and relied upon a copy of the
Registration Statement. We have also examined originals, or copies of
originals certified to our satisfaction, of such agreements, documents,
certificates and statements of government officials and other instruments,
and have examined such questions of law and have satisfied ourselves as to
such matters of fact, as we have considered relevant and necessary as a basis
for this opinion. We have assumed the authenticity of all documents submitted
to us as originals, the genuineness of all signatures, the legal capacity of
all natural persons and the conformity with the original documents of any
copies thereof submitted to us for examination.
Based on the foregoing, and subject to the qualifications and limitations
hereinafter set forth, it is our opinion that each series of Debt Securities
will be legally issued and binding obligations of EIC (except to the extent
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws
affecting the enforcement of creditors' rights generally and by the effect of
general principles of equity, regardless of whether enforceability is
considered in a proceeding in equity or at law) when (i) the Registration
Statement, as finally amended (including any necessary post-effective
amendments), shall have become effective under the Securities Act and the
Indenture, including any necessary supplemental indenture, filed as an
exhibit to the Registration Statement shall have been duly executed and
delivered by EIC and the Trustee and qualified under the Trust Indenture Act
of 1939, as amended; (ii) a Prospectus Supplement with respect to such series
of Debt Securities shall have been filed with the Commission in compliance
with the Securities Act and the rules and regulations thereunder; (iii) a
Board Resolution or Officers' Certificate within the meaning of the Indenture
shall have been duly issued, or supplemental indenture entered into, in
accordance with the Indenture detailing the establishment of such series of
Debt Securities; and (iv) such series of Debt Securities shall have been duly
executed and authenticated and shall have been duly delivered to the purchasers
thereof against payment of the agreed consideration therefor.
We do not find it necessary for the purposes of this opinion to cover,
and accordingly we express no opinion as to, the application of the securities
or blue sky laws of the various states to the sale of the Debt Securities.
Without limiting the generality of the foregoing, we express no opinion in
connection with the matters contemplated by the Registration Statement, and
no opinion may be implied or inferred, except as expressly set forth herein.
This opinion is limited to the laws of the State of Iowa and of the
United States of America to the extent applicable.
We hereby consent to the inclusion of this opinion as Exhibit 5 to the
Registration Statement and to all references to this law firm in the
Registration Statement or the Prospectus included therein.
Respectfully submitted,
Nyemaster, Goode, McLaughlin,
Voigts, West, Hansell &
O'Brien, P.C.
By /s/ G. R. Neumann
G. R. Neumann
GRN:pjt
EQUITABLE OF IOWA COMPANIES AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
The following table reflects the company's computation of the ratio of
earnings to fixed charges for the last five years:
<TABLE>
<CAPTION>
For the
Nine Months
ended For the Year ended December 31,
Sept 30, ---------------------------------------------
1994 1993 1992 1991 1990 1989
--------- ---------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Consolidated pretax (Dollars in thousands)
income from continuing
operations before equity
income, extraordinary
items and cumulative
effect of accounting
change $113,027 $134,995 $83,743 $43,128 $34,540 $41,627
Share of pretax losses
of unconsolidated
majority-owned
affiliate --- --- --- --- --- (185)
Share of pretax
losses of 50%
owned affiliates (127) (368) (268) (392) (446) (427)
Distributed earnings of
less than 50% owned
affiliates 137 321 464 128 241 338
Interest 7,687 11,177 11,099 10,012 9,911 8,689
Amortization of
debt issuance
expenses 6 8 8 8 8 8
Interest portion of
rental expense 660 771 949 924 918 546
--------- ---------------------------------------------
Earnings $121,390 $146,904 $95,995 $53,808 $45,172 $50,596
========= =============================================
Interest $7,687 $11,177 $11,099 $10,012 $9,911 $8,689
Amortization of
debt issuance
expenses 6 8 8 8 8 8
Interest portion of
rental expense 660 771 949 924 918 546
--------- ---------------------------------------------
Fixed Charges $8,353 $11,956 $12,056 $10,944 $10,837 $9,243
========= =============================================
Ratio of Earnings to
Fixed Charges 14.53 12.29 7.96 4.92 4.17 5.47
========= =============================================
</TABLE>
No preferred stock dividends were paid during the periods presented.
Accordingly, the ratio of earnings to combined fixed charges and preferred
stock dividends is the same as the ratio of earnings to fixed charges.
The company guarantees debt of an unaffiliated party. Fixed charges of:
1994 - $1,741,000; 1993 - $2,359,000; 1992 - $2,389,000; 1991 - $2,416,000;
1990 - $2,440,000; and 1989 - $2,463,000, have been excluded from the
computation of the ratio of earnings to fixed charges because the company
does not believe it probable that it will be required to satisfy this
guarantee.
EXHIBIT 23.2 - CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
the Registration Statement (Form S-3, No. 33-) and related Prospectus of
Equitable of Iowa Companies for the registration of $125,000,000 of its debt
securities and to the incorporation by reference therein of our report dated
February 10, 1994, with respect to the consolidated financial statements
and schedules of Equitable of Iowa Companies and subsidiaries included in its
Annual Report (Form 10-K) for the year ended December 31, 1993, filed with
the Securities and Exchange Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
Des Moines, Iowa
January 16, 1995
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
-----------------
EQUITABLE OF IOWA COMPANIES
(Exact name of obligor as specified in its charter)
Iowa 42-1083593
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
604 Locust Street
P.O. Box 1635
Des Moines, Iowa 50306-1635
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of Indenture Securities)
Item 1. General Information. Furnish the following information as to the
trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation, Washington, D.C.,
The Board of Governors of the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations With the Obligor. If the obligor is an affiliate of
the trustee, describe each such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a part of this
Statement of Eligibility.
1. A copy of the articles of association of the trustee now in
effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of Chicago and State of Illinois, on the 9th day of January,
1995.
The First National Bank of Chicago,
Trustee,
By /s/ R. D. Manella
R. D. Manella
Vice President and Senior Counsel
*Exhibits 1, 2, 3, and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 12 of the Form T-1 of The First
National Bank of Chicago, filed as Exhibit 26(b) to the Registration
Statement on Form S-3 of Dow Capital B.V. and The Dow Chemical Company,
filed with the Securities and Exchange Commission on June 3, 1991
(Registration No. 33-36314).
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
January 9, 1995
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between
Equitable of Iowa Companies and The First National Bank of
Chicago, the undersigned, in accordance with Section 321(b) of
the Trust Indenture Act of 1939, as amended, hereby consents that
the reports of examinations of the undersigned, made by Federal
or State authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange
Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By: /s/ R. D. Manella
R. D. Manella
Vice President and Senior Counsel
EXHIBIT 7
A copy of the latest report of conditions of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
Legal Title of Bank: The First National Bank of Chicago Call Date: 9/30/94
Address: One First National Plaza, Suite 0460 ST-BK: 17-1630 FFIEC 031
City, State Zip: Chicago, IL 60670-0460 Page RC-1
FDIC Certificate No.: 0/3/6/1/8
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for September 30, 1994
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
Schedule RC-Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts C400 <-
in Thousands RCFD BIL MIL THOU
______________ ____ ____________ ____
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from
depository institutions
(from Schedule RC-A):
a. Noninterest-bearing
balances and currency
and coin(1) 0081 3,677,034 1.a.
b. Interest-bearing
balances(2) 0071 7,396,406 1.b.
2. Securities
a. Held-to-maturity
securities (from Schedule
RC-B, column A) 1754 169,280 2.a.
b. Available-for-sale
securities (from Schedule
RC-B, column D) 1773 533,138 2.b.
3. Federal funds sold and
securities purchased under
agreements to resell in
domestic offices of the bank
and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold 0276 3,758,277 3.a.
b. Securities purchased under
agreements to resell 0277 983,109 3.b.
4. Loans and lease financing
receivables:
a. Loans and leases, net of
unearned income (from
Schedule RC-C) RCFD 2122 14,933,756 4.a.
b. LESS: Allowance for
loan and lease losses RCFD 3123 355,626 4.b.
c. LESS: Allocated
transfer risk reserve RCFD 3128 0 4.c.
d. Loans and leases, net
of unearned income,
allowance, and reserve
(item 4.a minus 4.b and
4.c) 2125 14,578,130 4.d.
5. Assets held in trading accounts 3545 9,793,010 5.
6. Premises and fixed assets
(including capitalized leases) 2145 506,298 6.
</TABLE>
Legal Title of Bank: The First National Bank of Chicago Call Date: 9/30/94
Address: One First National Plaza, Suite 0460 ST-BK: 17-1630 FFIEC 031
City, State Zip: Chicago, IL 60670-0460 Page RC-2
FDIC Certificate No.: 0/3/6/1/8
Schedule RC-Balance Sheet (continued)
<TABLE>
<CAPTION>
Dollar Amounts C400 <-
in Thousands RCFD BIL MIL THOU
______________ ____ ____________ ____
<S> <C> <C> <C>
7. Other real estate owned (from
Schedule RC-M) 2150 48,699 7.
8. Investments in unconsolidated
subsidiaries and associated
companies (from Schedule RC-M) 2130 7,269 8.
9. Customers' liability to this
bank on acceptances outstanding 2155 583,073 9.
10. Intangible assets (from Schedule
RC-M) 2143 122,763 10.
11. Other assets (from Schedule RC-F) 2160 1,217,250 11.
12. Total assets (sum of items
1 through 11) 2170 43,373,736 12.
<FN>
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
</TABLE>
Legal Title of Bank: The First National Bank of Chicago Call Date: 9/30/94
Address: One First National Plaza, Suite 0460 ST-BK: 17-1630 FFIEC 031
City, State Zip: Chicago, IL 60670-0460 Page RC-3
FDIC Certificate No.: 0/3/6/1/8
Schedule RC-Balance Sheet (continued)
<TABLE>
<CAPTION>
Dollar Amounts
in Thousands BIL MIL THOU
______________ ____________
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices
(sum of totals of
columns A and C from
Schedule RC-E, part
1) RCON 2200 14,587,998 13.a.
(1) Noninterest-
bearing(1) RCON 6631 5,788,459 13.a.(1)
(2) Interest-
bearing RCON 6636 8,799,539 13.a.(2)
b. In foreign offices,
Edge and Agreement
subsidiaries, and
IBFs (from Schedule
RC-E, part II) RCFN 2200 9,974,515 13.b.
(1) Noninterest-
bearing RCFN 6631 850,522 13.b.(1)
(2) Interest-
bearing RCFN 6636 9,123,993 13.b.(2)
14. Federal funds purchased
and securities sold under
agreements to repurchase
in domestic offices of
the bank and of its Edge
and Agreement subsidiaries,
and in IBFs:
a. Federal funds purchased RCFD 0278 2,211,005 14.a.
b. Securities sold under
agreements to repurchase RCFD 0279 765,393 14.b.
15. a. Demand notes issued to
the U.S. Treasury RCON 2840 102,201 15.a.
b. Trading Liabilities RCFD 3548 6,291,743 15.b.
16. Other borrowed money:
a. With original maturity
of one year or less RCFD 2332 3,237,167 16.a.
b. With original maturity
of more than one year RCFD 2333 491,176 16.b.
17. Mortgage indebtedness and
obligations under capitalized
leases RCFD 2910 275,794 17.
18. Bank's liability on acceptance
executed and outstanding RCFD 2920 583,073 18.
19. Subordinated notes and
debentures RCFD 3200 1,325,000 19.
20. Other liabilities (from
Schedule RC-G) RCFD 2930 638,753 20.
21. Total liabilities (sum of
items 13 through 20) RCFD 2948 40,483,818 21.
</TABLE>
Legal Title of Bank: The First National Bank of Chicago Call Date: 9/30/94
Address: One First National Plaza, Suite 0460 ST-BK: 17-1630 FFIEC 031
City, State Zip: Chicago, IL 60670-0460 Page RC-4
FDIC Certificate No.: 0/3/6/1/8
Schedule RC-Balance Sheet (continued)
<TABLE>
<CAPTION>
Dollar Amounts
in Thousands BIL MIL THOU
______________ ____________
<S> <C> <C> <C>
22. Limited-Life preferred
stock and related surplus RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock
and related surplus RCFD 3838 0 23.
24. Common stock RCFD 3230 200,858 24.
25. Surplus (exclude all
surplus related to
preferred stock) RCFD 3839 2,289,398 25.
26. a. Undivided profits
and capital reserves RCFD 3632 403,835 26.a.
b. Net unrealized holding
gains (losses) on
available-for-sale
securities RCFD 8434 ( 3,441) 26.b.
27. Cumulative foreign
currency translation
adjustments RCFD 3284 (732) 27.
28. Total equity capital
(sum of items 23 through
27) RCFD 3210 2,889,918 28.
29. Total liabilities,
limited-life preferred
stock, and equity
capital (sum of items
21, 22, and 28) RCFD 3300 43,373,736 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the
number of the statement below that best
describes the most comprehensive level
of auditing work performed for the bank Number
by independent external auditors as of
any date during 1993 RCFD 6724 N/A M.1.
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated
holding company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
