<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event
reported): March 3, 2000
CNF TRANSPORTATION INC.
_______________________________________________________________
(Exact name of registrant as specified in its charter)
Delaware 1-5046 94-1444798
- ---------------------------- ------------------ ----------------------
(State or other jurisdiction (Commission File (IRS Employer
of incorporation Number) Identification No.)
3240 Hillview Avenue
Palo Alto, California 94304
- ---------------------------- ----------------------
(Address of principal (Zip Code)
executive offices)
(650) 494-2900
--------------------
(Registrant's telephone number, including area code)
Not Applicable
--------------------
(Former name or former address, if changed since last report)
Exhibit Index Located at Page 3
<PAGE>
Item 5. Other Events.
------------
On March 3, 2000, CNF Transportation Inc. (the "Company") executed an
Underwriting Agreement in connection with the previously announced public
offering of $200 million aggregate principal amount of its 8 7/8% Notes due 2010
(the "Notes"). The Company is filing this Current Report on Form 8-K in
connection with the issuance of the Notes under the Company's shelf registration
statement on Form S-3 (File No. 333-56667).
This Current Report on Form 8-K shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any offer of the Notes in
any State in which such offer, solicitation or sale would be unlawful prior to
the registration or qualification under the securities laws of any such state.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
------------------------------------------------------------------
Exhibit No. Description
----------- -----------
1(b) Underwriting Agreement with respect to the Notes
dated March 3, 2000 between CNF Transportation
Inc., J.P. Morgan Securities Inc., Salomon Smith
Barney Inc., ABN AMRO Incorporated and Credit
Suisse First Boston Corporation
4(d)(i) Form of Indenture between CNF Transportation Inc.
and Bank One Trust Company, National Association
4(i) Form of certificate evidencing the Notes
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CNF Transportation Inc.
(Registrant)
Date: March 8, 2000 /s/ Chutta Ratnathicam
---------------------------------------------
Chutta Ratnathicam
Senior Vice President and Chief Financial
Officer
2
<PAGE>
Exhibit Index
Exhibit No. Description
- ----------- -----------
1(b) Underwriting Agreement with respect to the Notes dated March
3, 2000 between CNF Transportation Inc., J.P. Morgan
Securities Inc., Salomon Smith Barney Inc., ABN AMRO
Incorporated and Credit Suisse First Boston Corporation
4(d)(i) Form of Indenture between CNF Transportation Inc. and Bank
One Trust Company, National Association
4(i) Form of certificate evidencing the Notes
3
<PAGE>
CNF TRANSPORTATION INC.
$200,000,000
8-7/8% Notes due 2010
UNDERWRITING AGREEMENT
----------------------
March 3, 2000
J.P. MORGAN SECURITIES INC.
SALOMON SMITH BARNEY INC.
ABN AMRO INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
c/o J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Ladies and Gentlemen:
CNF Transportation Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to J.P. Morgan Securities Inc., Salomon Smith Barney
Inc., ABN AMRO Incorporated and Credit Suisse First Boston Corporation (the
"Underwriters"), an aggregate of $200,000,000 principal amount of its 8-7/8%
Notes due 2010 (the "Securities").
It is understood that substantially contemporaneously with the sale of
the Securities to the Underwriters contemplated hereby, the Company and Bank One
Trust Company, National Association, as Trustee, (the "Trustee") shall enter
into an Indenture in substantially the form of the Form of Indenture for
senior Debt Securities, senior subordinated Debt Securities, subordinated Debt
Securities, junior subordinated Debt Securities and Debt Securities of any other
ranking attached as Exhibit 4(d)(i) to the Registration Statement referred to
below (the "Indenture," which term includes the terms of the Securities which
shall be established pursuant to the Officers' Certificate to be dated March 8,
2000) and an Officers' Certificate in substantially the form heretofore
provided to you by the Company as an exhibit to the Form 8-K to be filed by the
Company on or prior to the Closing Date providing for the issuance of the
Securities.
<PAGE>
1. Registration Statement and Prospectus. The Company has prepared
-------------------------------------
and filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively called the
"Securities Act"), a registration statement on Form S-3 (the registration number
of which is 333-56667), including a prospectus, relating to, among other things,
certain debt securities of the Company (such debt securities, the "Shelf
Securities"). The Company also has filed with, or proposes to file with, the
Commission pursuant to Rule 424 under the Securities Act a prospectus supplement
specifically relating to the Securities. The registration statement as amended
to the date of this Agreement is hereinafter referred to as the "Base
Registration Statement" and any registration statement filed pursuant to Rule
462(b) under the Securities Act relating to the Securities is herein referred to
as the "Additional Registration Statement," and, together with the Base
Registration Statement, the "Registration Statement." The related prospectus
covering the Shelf Securities in the form first used to confirm sales of the
Securities is hereinafter referred to as the "Basic Prospectus." The Basic
Prospectus as supplemented by the prospectus supplement (the "Prospectus
Supplement") specifically relating to the Securities in the form first used to
confirm sales of the Securities is hereinafter referred to as the "Prospectus."
Any reference in this Agreement to the Registration Statement, the Basic
Prospectus, any preliminary form of Prospectus (a "preliminary prospectus")
previously filed with the Commission pursuant to Rule 424 or the Prospectus
shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Securities Act which were
filed under the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Exchange Act") on
or before the date of this Agreement or the date of the Basic Prospectus, such
preliminary prospectus or the Prospectus, as the case may be; and any reference
to "amend," "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any preliminary prospectus or the Prospectus
shall be deemed to refer to and include any documents filed under the Exchange
Act after the date of this Agreement, or the date of the Basic Prospectus, such
preliminary prospectus or the Prospectus, as the case may be, which are deemed
to be incorporated by reference therein.
2. Agreements to Sell and Purchase. On the basis of the
-------------------------------
representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to issue and sell the Securities to the
several Underwriters as hereinafter provided, and each Underwriter, on the basis
of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees, severally and not jointly, to purchase
from the Company the respective principal amount of Securities set forth
opposite the name of such Underwriter in Schedule I hereto at the purchase price
of 98.726% of the principal amount thereof (the "Purchase Price").
2
<PAGE>
3. Terms of Public Offering. The Company is advised by you that the
------------------------
Underwriters propose (i) to make a public offering of their respective portions
of the Securities as soon after the parties hereto have executed this Agreement,
as in your judgment is advisable and (ii) initially to offer the Securities upon
the terms set forth in the Prospectus.
4. Delivery and Payment. Delivery to the Underwriters of and
--------------------
payment for the Securities shall be made at 10:00 A.M., New York City time, on
March 8, 2000, or at such other time or such other date as the Underwriters and
the Company may agree upon in writing. The time and date of such payment are
referred to herein as the "Closing Date." As used herein, the term "Business
Day" means any day other than a day on which banks are permitted or required to
be closed in New York City.
Certificates for the Securities shall be registered in such names and
issued in such denominations as you shall request in writing not later than two
full Business Days prior to the Closing Date. Such certificates shall be made
available to you for inspection not later than 9:30 A.M., New York City time, on
the Business Day next preceding the Closing Date. Certificates in definitive
form evidencing the Securities shall be delivered to you or as directed by you
on the Closing Date, with any transfer taxes thereon duly paid by the Company,
for the respective accounts of the several Underwriters, against payment to the
Company of the Purchase Price therefor by wire transfer in immediately available
funds to the account specified by the Company to the Underwriters (no later than
noon the Business Day prior to the Closing Date).
5. Agreements of the Company. The Company agrees with each of you:
-------------------------
(a) To file the Prospectus, which shall be in a form reasonably
satisfactory to you, with the Commission within the time periods specified
by Rule 424; and to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering or
sale of the Securities; and to furnish copies of the Prospectus to the
Underwriters in New York City prior to 5:00 p.m., New York City time, on
the Business Day next succeeding the date of this Agreement in such
quantities as the Underwriters may reasonably request.
(b) During the period referred to in paragraph (e) below, to
advise you promptly and, if requested by you, to confirm such advice in
writing, (i) when any post-effective amendment to the Registration
Statement has been filed or becomes effective after the date of this
Agreement, (ii) when any supplement to the Prospectus or any amended
Prospectus has been filed, (iii) of any request by the Commission for
amend-
3
<PAGE>
ments to the Registration Statement or amendments or supplements to the
Prospectus or for additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the
Securities for offering or sale in any jurisdiction, or the initiation of
any proceeding for such purposes, and (v) of the happening of any event
which makes any statement of a material fact made in the Registration
Statement or the Prospectus untrue or which requires the making of any
additions to or changes in the Registration Statement or the Prospectus in
order to make the statements therein not misleading. During the period
referred to in paragraph (e) below, the Company will use its reasonable
best efforts to prevent the issuance of any stop order by the Commission,
and if at any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, the Company will make every
reasonable effort to obtain the withdrawal or lifting of such order at the
earliest possible time.
(c) To furnish to you one signed copy and three conformed copies
of the Registration Statement as first filed with the Commission and of
each amendment to it, including all exhibits thereto and documents
incorporated by reference therein, and to furnish to you and each
Underwriter designated by you such number of conformed copies of the
Registration Statement as so filed and of each amendment to it, without
exhibits thereto but including the documents incorporated by reference
therein, as you may reasonably request.
(d) During the period specified in paragraph (e) below, not to
file any amendment or supplement to the Registration Statement, whether
before or after the time when it becomes effective, or to make any
amendment or supplement to the Prospectus of which you shall not previously
have been advised and given the opportunity to review, or to which you
shall reasonably object; and to prepare and file with the Commission,
promptly upon your reasonable request, any amendment to the Registration
Statement or supplement to the Prospectus which may be necessary or
advisable in connection with the distribution of the Securities by you,
and, if applicable, to use its reasonable best efforts to cause the same to
become promptly effective.
(e) Promptly after the Registration Statement becomes effective,
and from time to time thereafter for such period as in the opinion of
counsel for the Under writers a prospectus is required by law to be
delivered in connection with sales by an Underwriter or a dealer, to
furnish to each Underwriter and dealer as many copies of the Prospectus
(and of any amendment or supplement to the Prospectus) as such Underwriter
or dealer may reasonably request.
4
<PAGE>
(f) If during the period specified in paragraph (e) above, any
event shall occur as a result of which, in the opinion of counsel for the
Underwriters, it becomes necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if it
is necessary to amend or supplement the Prospectus to comply with any law,
forthwith to prepare and file with the Commission an appropriate amendment
or supplement to the Prospectus so that the statements in the Prospectus,
as so amended or supplemented, will not in the light of the circumstances
when it is so delivered, be misleading, or so that the Prospectus will
comply with law, and to furnish to each Underwriter and to such dealers as
you shall specify, such number of copies thereof as such Underwriter or
dealers may reasonably request.
(g) Prior to any public offering of the Securities, to cooperate
with you and counsel for the Underwriters in connection with the
registration or qualification of the Securities for offer and sale by the
several Underwriters and by dealers under the state securities or Blue Sky
laws of such jurisdictions as you may request, to continue such
qualification in effect so long as required for distribution of the
Securities and to file such consents to service of process or other
documents as may be necessary in order to effect such registration or
qualification.
(h) To mail and make generally available to its securityholders
and to the Underwriters as soon as reasonably practicable an earnings
statement covering a period of at least twelve months beginning with the
first fiscal quarter of the Company occurring after the effective date of
the Registration Statement, which shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 of the Commission promulgated
thereunder, and to advise you in writing when such statement has been so
made available.
(i) During the period beginning on the date hereof and continuing
to and including the Business Day following the Closing Date, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of or
guaranteed by the Company which are substantially similar to the
Securities.
(j) To use the net proceeds received by the Company from the sale
of the Securities pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds."
(k) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, to pay all
costs, expenses, fees and
5
<PAGE>
taxes incident to the performance of its obligations hereunder (excluding,
without limitation, fees and disbursements of counsel for the Underwriters
other than pursuant to clauses (iv) and (v) below), including without
limiting the generality of the foregoing, all costs and expenses incident
to (i) the preparation, issuance, and delivery of the certificates for the
Securities, including any expenses of the Trustee (ii) the preparation,
printing, filing and distribution under the Securities Act of the
Registration Statement (including financial statements and exhibits), each
preliminary prospectus and all amendments and supplements to any of them
prior to or during the period specified in paragraph (e) above, (iii) the
printing and delivery of the Prospectus and any preliminary prospectus and
all amendments or supplements to it during the period specified in
paragraph (e) above, (iv) the printing (including word processing and
duplication costs) and delivery of this Agreement, the Indenture,
Preliminary and Supplemental Blue Sky Memoranda and all other agreements,
memoranda, correspondence and other documents printed and delivered in
connection with the offering of the Securities (including in each case any
disbursements of counsel for the Underwriters relating to such printing
and delivery of the Blue Sky Memorandum), (v) the registration or
qualification of the Securities for offer and sale under the securities or
Blue Sky laws of the several states (including in each case the reasonable
fees and disbursements of counsel for the Underwriters relating to such
registration or qualification and memoranda relating thereto), (vi) filings
and clearance with the National Association of Securities Dealers, Inc. in
connection with the offering, (vii) furnishing such copies of the
Registration Statement, the Prospectus and all amendments and supplements
thereto as may be requested for use in connection with the offering or sale
of the Securities by the Underwriters or by dealers to whom Securities may
be sold, and (viii) the rating of the Securities including, without
limitation, fees payable to rating agencies in connection therewith.
(l) To use its reasonable best efforts to do and perform all
things required or necessary to be done and performed under this Agreement
by the Company prior to the Closing Date and to satisfy all conditions
precedent to the delivery of the Securities.
6. Representations and Warranties of the Company. The Company
---------------------------------------------
represents and warrants to each Underwriter that:
(a) No order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and each preliminary
prospectus filed as part of the Registration Statement as originally filed
or as part of any amendment thereto, or filed pursuant to Rule 424 under
the Securities Act, complied when so filed in all material respects with
the Securities Act, and did not contain an untrue statement of a
6
<PAGE>
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that
this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through J.P. Morgan
Securities Inc. expressly for use therein.
(b) The Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of the
Company, threatened by the Commission; and the Registration Statement and
Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) comply, or will comply, as the case
may be, in all material respects with the Securities Act and the Trust
Indenture Act of 1939, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Trust Indenture Act"), and do not
and will not, as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the date of the Prospectus
and any amendment or supplement thereto, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and the
Prospectus, as amended or supplemented, if applicable, at the Closing
Date will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
except that the foregoing representations and warranties shall not apply to
(i) that part of the Registration Statement which constitutes the
Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of any trustee (each a "Form T-1"), and (ii) statements or
omissions in the Registration Statement or the Prospectus or any amendment
or supplement made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through J.P. Morgan
Securities Inc. expressly for use therein.
(c) The documents incorporated by reference in the Prospectus,
when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act, and none of such
documents contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading; and
any further documents so filed and incorporated by reference in the
Prospectus, when such documents are filed with the Commission, will conform
in all material respects to the
7
<PAGE>
requirements of the Exchange Act, and will not contain an untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(d) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware with corporate
power and corporate authority under such laws to own, lease and operate its
properties and conduct its business as described in the Prospectus; and the
Company is duly qualified to transact business as a foreign corporation and
is in good standing in each other jurisdiction in which it owns or leases
property of a nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure to so
qualify or be in good standing would not have a material adverse effect on
the Company and its subsidiaries, considered as one enterprise.
(e) Each of Con-Way Transportation Services, Inc., Emery
Worldwide Airlines, Inc. ("EWA") and Menlo Logistics, Inc. (each
individually, a "Significant Subsidiary" and collectively, the "Significant
Subsidiaries") is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization with
corporate power and corporate authority under such laws to own, lease and
operate its properties and conduct its business; and each Significant
Subsidiary is duly qualified to transact business as a foreign corporation
and is in good standing in each other jurisdiction in which it owns or
leases property of a nature, or transacts business of a type, that would
make such qualification necessary, except to the extent that the failure to
so qualify or be in good standing would not have a material adverse effect
on the Company and its subsidiaries, considered as one enterprise. All of
the outstanding shares of capital stock of each Significant Subsidiary have
been duly authorized and validly issued and are fully paid and non-
assessable and are owned by the Company (except for directors' qualifying
shares), free and clear of any pledge, lien, security interest, charge,
claim, equity, encumbrance or adverse interest of any kind (except for
restrictions on transfer arising under federal or state securities or blue
sky laws).
(f) The Indenture has been duly qualified under the Trust
Indenture Act and, at the Closing Date, will have been duly authorized,
executed and delivered by the Company and will be a valid and binding
agreement of the Company, enforceable in accordance with its terms subject
to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance, fraudulent transfer or other similar laws relating
or affecting creditors' rights generally or by general equitable principals
and except as rights to indemnification and contribution may be limited by
applicable law or public policy; the Securities have been duly authorized
and, when duly executed, attested and authenti-
8
<PAGE>
cated in accordance with the provisions of the Indenture and delivered
against payment therefor in accordance with this Agreement, will be
entitled to the benefits of the Indenture.
(g) This Agreement has been duly authorized, executed and
delivered by the Company.
(h) The Securities and the Indenture conform as to legal matters
in all material respects to the descriptions thereof contained in the
Registration Statement and the Prospectus. The Company had at the date
indicated in the Prospectus a duly authorized, issued and outstanding
capitalization as set forth in the Prospectus under the caption
"Capitalization." All of the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid and
non-assessable.
(i) The Company is not in violation of its charter or by-laws,
and none of the Significant Subsidiaries is in violation of its charter or
by-laws, except for any such violations which, individually and in the
aggregate, would not have a material adverse effect on the Company and its
subsidiaries taken as a whole, and except as otherwise set forth in the
Prospectus, none of the Company or any of the Significant Subsidiaries is
in default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which it is a
party or by which it is bound or to which any of its properties is subject,
except for such defaults that would not have a material adverse effect on
the Company and its subsidiaries, considered as one enterprise. The
execution, delivery and performance by the Company of this Agreement, the
Indenture, and the Securities and the compliance by the Company with all of
its obligations hereunder and thereunder and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by
all necessary corporate action on the part of the Company and do not and
will not result in any violation of the charter or by-laws of the Company
or any Significant Subsidiary, and do not and will not violate or conflict
with, or result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or
any Significant Subsidiary under any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which the
Company or any Significant Subsidiary is a party or by which it is bound or
to which any of their respective properties are subject or any existing
applicable law, rule, regulation, judgment, order or decree of any
government, governmental instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any Significant Subsidiary or any
of their respective properties (except for such violations, conflicts,
breaches or
9
<PAGE>
defaults or liens, charges or encumbrances that would not have a material
adverse effect on the Company and its subsidiaries, considered as one
enterprise).
(j) No authorization, approval, consent or license of any
government, governmental instrumentality or court, domestic or foreign
(other than under the Securities Act, the Exchange Act, the Trust
Indenture Act and the securities or blue sky laws of the various states and
of foreign jurisdictions) is required for the valid authorization,
issuance, sale and delivery of the Securities, for the execution, delivery
or performance by the Company of this Agreement, the Indenture and the
Securities or for the consummation by the Company of the transactions
contemplated hereby or thereby, except such of the foregoing as will be
obtained prior to the Closing Date.
(k) Except as disclosed in the Prospectus, there is no action,
suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the
knowledge of the Company, threatened against or affecting, the Company or
any Significant Subsidiary or any of their respective officers, as
applicable, in their capacity as such, in which there is a reasonable
possibility of an adverse decision that would (A) result in any material
adverse change in the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise, (B) materially and adversely affect the
properties or assets of the Company and its subsidiaries, considered as one
enterprise or (C) adversely affect the consummation of the transactions
contemplated in this Agreement; the aggregate of all pending legal or
governmental proceedings that are not described in the Prospectus to which
the Company or any Significant Subsidiary is a party or which affect any of
their respective properties and in which there is a reasonable possibility
of an adverse decision, including ordinary routine litigation incidental to
the business of, the Company or any Significant Subsidiary, would not have
a material adverse effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise; and there are no contracts or
other documents that are required to be described in the Registration
Statement or Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required.
(l) Each employee benefit plan, within the meaning of Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended,
("ERISA") that is maintained, administered or contributed to by the Company
or any of its subsidiaries for employees or former employees of the Company
and its subsidiaries has been maintained in compliance with its terms and
the requirements of any applicable statutes, orders, rules and regulations,
including but not limited to ERISA and the Internal Revenue Code of
10
<PAGE>
1986, as amended, ("Code"), except where the failure to comply would not
have a material adverse effect on the Company and its subsidiaries
considered as one enterprise. No prohibited transaction, within the meaning
of Section 406 of ERISA or Section 4975 of the Code has occurred with
respect to any such plan excluding transactions effected pursuant to a
statutory or administrative exemption, except where such prohibited
transaction would not have a material adverse effect on the Company and its
subsidiaries taken as one enterprise. For each such plan which is subject
to the funding rules of Section 412 of the Code or Section 302 of ERISA no
"accumulated funding deficiency" as defined in Section 412 of the Code has
been incurred, whether or not waived, except where the "accumulated funding
deficiency" has been waived by the Internal Revenue Service, and the
deficiency would not have a material effect on the Company and its
subsidiaries considered as one enterprise. The fair market value of the
assets of each such plan which is subject to the funding rules of Section
412 of the Code or Section 302 of ERISA (excluding for these purposes
accrued but unpaid contributions) exceeded the present value of all
benefits accrued under such plan determined using reasonable actuarial
assumptions as of the date of the most recent actuarial valuation of the
plan, except where the failure to have assets with a fair market value in
excess of the present value of accrued benefits would not have a material
effect on the Company and its subsidiaries considered as one enterprise
(including the creation of a material risk of involuntary termination of
the plan by the Pension Benefit Guaranty Corporation or imposition of a
lien on the assets of the Company). There is no reasonable likelihood that
the Company or any of its subsidiaries could incur liability under Title IV
of ERISA or suffer the imposition of one or more liens under ERISA or the
Code with respect to any such plan or other employee benefit plan, except
as otherwise disclosed in or contemplated by the Prospectus and except for
such liability or lien which would not have a material adverse effect on
the Company and its subsidiaries considered as one enterprise. With respect
to any employee benefit plan that is a multiemployer plan as defined in
Section 3(37) of ERISA, or another plan not sponsored by the Company, the
representations in this paragraph (l) are made to the best knowledge and
belief of the Company.
(m) The Company has no knowledge of any actionable violation by
the Company or any of its subsidiaries of any federal, state or local law
relating to employment and employment practices, discrimination in the
hiring, promotion or pay of employees, or any applicable wage or hour laws,
which, individually or in the aggregate, would result in a material adverse
effect on the Company and its subsidiaries, considered as one enterprise.
There is (A) no material unfair labor practice complaint pending or, to the
knowledge of the Company, threatened against the Company before the
National Labor Relations Board or any state or local labor relations board,
nor are any material grievance or arbitration proceedings arising under any
collective bargaining agreement
11
<PAGE>
pending or, to the knowledge of the Company, threatened against the
Company, (B) no labor strike, dispute, slowdown or stoppage ("Labor
Dispute") in which the Company is involved, nor, to the knowledge of the
Company, is any Labor Dispute imminent, other than routine disciplinary and
grievance matters, and (C) except as disclosed in or contemplated by the
Prospectus, no question concerning union representation within the meaning
of the National Labor Relations Act existing with respect to the employees
of the Company and, to the knowledge of the Company, no union organizing
activities are taking place by employees of the Company or any of its
subsidiaries, which, with respect to any matter specified in clauses (A),
(B) or (C) above, whether considered singly or in the aggregate, would have
a material adverse effect on the Company and its subsidiaries, considered
as one enterprise.
(n) Arthur Andersen LLP, which reported upon the audited
financial statements and related notes included in the Prospectus, is an
independent public accountant with respect to the Company in accordance
with the provisions of the Securities Act and the rules and regulations of
the Commission thereunder.
(o) The financial statements, together with the related notes and
schedules thereto, included or incorporated by reference in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto) present fairly the consolidated financial position, results of
operations and cash flow of the Company and its subsidiaries on the basis
stated in the Registration Statement and the Prospectus at the respective
dates and for the respective periods to which they apply; such statements
and related notes and schedules thereto have been prepared in accordance
with generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed therein; and the other
financial and statistical information and data set forth in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto), in all material respects, present fairly the information
purported to be shown thereby at the respective dates or for the respective
periods to which they apply and, to the extent that such information is set
forth in or has been derived from the financial statements and accounting
books and records of the Company, have been prepared on a basis consistent
with such financial statements and the books and records of the Company.
(p) Since the respective dates as of which information is given
in the Prospectus, except as otherwise stated therein or contemplated
thereby, there has not been (A) any material adverse change, or any
development involving a prospective material adverse change, in the
condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its subsidiaries, considered as one
enterprise,
12
<PAGE>
whether or not arising in the ordinary course of business, (B) any
transaction or agreement entered into by the Company, whether or not
arising in the ordinary course of business, that is material to the Company
and its subsidiaries, considered as one enterprise, (C) any dividend or
distribution of any kind declared, paid or made by the Company on its
capital stock, except for regular periodic dividends on its capital stock
or on the preferred securities of its subsidiary trust, or (D) any change
in the capital stock or long-term debt of the Company or any of its
subsidiaries, except for the issuance of Common Stock upon the conversion
of the Company's Series B Cumulative Convertible Preferred Stock or upon
conversion of the preferred securities of the Company's subsidiary trust,
the issuance of capital stock, options and other securities under existing
officer, director or employee benefit plans or upon the exercise of options
issued under existing or prior officer, director or employee benefit plans,
the purchase by the Company or any of its subsidiaries of the Company's
common stock in connection with its Thrift and Stock Plan in accordance
with past practice, and except for changes in long-term debt in the
ordinary course of business.
(q) The Company and the Significant Subsidiaries each owns,
possesses or has obtained all governmental licenses, permits, certificates,
consents, orders, approvals and other authorizations necessary to own or
lease, as the case may be, and to operate its properties and to carry on
its business as presently conducted, and the Company has not received any
notice of proceedings relating to revocation or modification of any such
licenses, permits, certificates, consents, orders, approvals or
authorizations, except in each case for such licenses, permits,
certificates, consents, orders, approvals and other authorizations or
revocations or modifications thereof which would not have a material
adverse effect on the Company and its subsidiaries considered as one
enterprise. Each of the Company and the Significant Subsidiaries is in
compliance with all laws and regulations relating to the conduct of its
business as conducted as of the date of the Prospectus, except where the
failure to be in compliance would not have a material adverse effect on the
Company and its subsidiaries, considered as one enterprise.
(r) The Company is not and, after giving effect to the offering
and the sale of the Securities, will not be an "investment company" or a
company controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(s) Except as would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, considered as
one enterprise, or otherwise require disclosure in the Registration
Statement, and except as otherwise set forth in or contemplated by the
Prospectus, (i) none of the Company or any of its
13
<PAGE>
subsidiaries is in violation of any federal, state or local laws and
regulations relating to pollution or protection of human health or the
environment, including, without limitation, laws and regulations relating
to emissions, discharges, releases or threatened releases of toxic or
hazardous substances, materials or wastes, or petroleum and petroleum
products ("Materials of Environmental Concern"), or otherwise relating to
the protection of human health and safety, or the use, treatment, storage,
disposal, transport or handling of Materials of Environmental Concern
(collectively, "Environmental Laws"), which violation includes, but is not
limited to, noncompliance with, or lack of, any permits or other
environmental authorizations, and (ii) (A) none of the Company or any of
its subsidiaries has received any communication (written or oral), whether
from a governmental authority or otherwise, alleging any such violation or
noncompliance, and there are no circumstances, either past, present or that
are reasonably foreseeable, that could reasonably be expected to lead to
any such violation in the future, (B) there is no pending or, to the
knowledge of the Company, threatened claim, action, investigation or notice
(written or oral) by any person or entity alleging potential liability for
investigatory, cleanup, or governmental response costs, or natural
resources or property damages, or personal injuries, attorney's fees or
penalties relating to (x) the presence, or release into the environment, of
any Materials of Environmental Concern at any location owned or operated by
the Company or any of its subsidiaries now or in the past, or (y)
circumstances forming the basis of any violation or potential violation, of
any Environmental Law (collectively, "Environmental Claims"), and (C) there
are no past or present actions, activities, circumstances, conditions,
events or incidents that could form the basis of any Environmental Claim
against the Company or any of its subsidiaries or against any person or
entity for whose acts or omissions the Company or any of its subsidiaries
is or may reasonably be expected to be liable, either contractually or by
operation of law. In the ordinary course of business, the Company and/or
certain of its subsidiaries, as appropriate, have conducted environmental
investigations of, and have reviewed reasonably available information
regarding, the business, properties and operations of the Company and its
subsidiaries, and of other properties within the vicinity of their
business, properties and operations, as appropriate for the circumstances
of each such property and operation; on the basis of such reviews and
investigations, the Company has reasonably concluded that, except as
disclosed or contemplated by the Prospectus, any costs and liabilities
associated with such matters would not have, singly or in the aggregate, a
material adverse effect on the Company and its subsidiaries, considered as
one enterprise, or otherwise require disclosure in the Registration
Statement.
(t) No person has the right to require the Company to register
any securities for offering and sale under the Securities Act by reason of
the filing of the Registration Statement with the Commission or the issue
and sale of the Securities.
14
<PAGE>
(u) The Company and each of the Significant Subsidiaries have
timely filed (or have had timely filed on their behalf) all material Tax
returns required by applicable law to be filed by them prior to the date
hereof (taking into account any properly granted extensions of time to file
any Tax returns), and all such Tax returns are true, complete, and correct
in all material respects. Except as otherwise stated or described in the
Prospectus, the Company and each of the Significant Subsidiaries have paid
(or have had paid on their behalf) all material Taxes (as defined below)
due or claimed to be due from the Company, other than those (i) currently
payable without penalty or interest or (ii) being contested in good faith
and by appropriate proceedings. Other than Tax items relating to proposed
assessments or Audits (as defined below) which have been disclosed to
counsel for the Underwriters or which are set forth or described in the
Prospectus, there are no other Tax items that are currently under
examination by any Tax Authority (as defined below) or, to the best
knowledge of the Company, that could result in a proposed deficiency if
examined by a Tax Authority in respect of which there is a reasonable
possibility of a determination that would be adverse to the Company and
that would have a material adverse effect on the Company and its
subsidiaries considered as one enterprise.
For purposes of this paragraph 6(u):
"Taxes" shall mean all federal, state, local and foreign taxes,
-----
and other assessments of a similar nature, whether imposed directly or
through withholding, including any interest, additions to tax or penalties
applicable thereto.
"Audit" shall mean any audit, assessment of Taxes, other
-----
examination by any tax authority, proceeding or appeal of such proceeding
relating to Taxes.
"Tax Authority" means the Internal Revenue Service and any other
-------------
domestic or foreign governmental authority responsible for the
administration of any Taxes.
(v) None of the Company or any of the Significant Subsidiaries
has taken or will take, directly or indirectly, any action designed to, or
that might be reasonably expected to, cause or result in stabilization or
manipulation of the price of the Securities.
(w) Any certificate signed by any officer of the Company and
delivered to you or your counsel on or after the date of this Agreement
shall be deemed a representation and warranty by the Company to you as to
the matters covered thereby.
15
<PAGE>
(x) The United States Postal Service ("USPS") Agreement (the
"Priority Mail Contract"), dated April 23, 1997, has been duly authorized,
executed and delivered by EWA and is a valid and binding agreement of EWA
which is in full force and effect.
(y) Immediately after any sale of Securities by the Company
hereunder, the aggregate amount of Securities which have been issued and
sold by the Company hereunder and of any securities of the Company (other
than the Securities) that shall have been issued and sold pursuant to the
Registration Statement will not exceed the amount of securities registered
under the Registration Statement.
(z) The Company meets the requirements for registering an
offering of securities with the Commission on registration statement Form
S-3 pursuant to the standard for that form immediately prior to October 21,
1992.
7. Indemnification. (a) The Company agrees to indemnify and hold
---------------
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages, liabilities
(including, without limitation, but subject to paragraph (b) below, the legal
fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted) and judgments (i) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus or any preliminary prospectus, or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
judgments are caused by any such untrue statement or omission or alleged untrue
statement or omission based upon information furnished in writing to the Company
by or on behalf of any Underwriter through J.P. Morgan Securities Inc. expressly
for use therein; provided, however, that the foregoing indemnity agreement with
-------- -------
respect to any preliminary prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages,
liabilities or judgments purchased Securities, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) was not sent
or given by or on behalf of such Underwriter to such person, if required by
law so to have been delivered, at or prior to the written confirmation of the
sale of the Securities to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses, claims,
damages, liabilities or judgments.
16
<PAGE>
(b) In case any action shall be brought against any Underwriter or any
person controlling such Underwriter, based upon any preliminary prospectus, the
Registration Statement or the Prospectus or any amendment or supplement thereto
and with respect to which indemnity may be sought against the Company, such
Underwriter shall promptly notify the Company in writing and the Company shall
assume the defense thereof, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses.
Any Underwriter or any such controlling person shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such
Underwriter or such controlling person unless (i) the employment of such counsel
has been specifically authorized in writing by the Company, (ii) the Company has
failed within a reasonable time to retain counsel reasonably satisfactory to
such Underwriter or such controlling person or (iii) the named parties to any
such action (including any impleaded parties) include both such Underwriter or
such controlling person and the Company and such Underwriter or such controlling
person shall have been advised by such counsel that there may be one or more
legal defenses available to it which are different from or additional to those
available to the Company (in which case the Company shall not have the right to
assume the defense of such action on behalf of such Underwriter or such
controlling person, it being understood, however, that the Company shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys (in addition to one firm of local
counsel) for all such Underwriters and controlling persons, which firm shall be
designated in writing by J.P. Morgan Securities Inc. and that all such fees and
expenses shall be reimbursed as they are incurred). The Company shall not be
liable for any settlement of any such action effected without the written
consent of the Company but if settled with the written consent of the Company,
the Company agrees to indemnify and hold harmless any Underwriter and any such
controlling person from and against any loss or liability by reason of such
settlement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
sentence of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 Business Days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. Notwithstanding the immediately
preceding sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this paragraph, such
indemnifying party shall not be liable for any settlement effected without its
written consent if such
17
<PAGE>
indemnifying party (x) reimburses such indemnified party in accordance with such
request to the extent that the indemnifying party in its judgment considers such
request to be reasonable and (y) provides written notice to the indemnified
party stating that reason it deems the unpaid balance unreasonable, in each case
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who signed the
Registration Statement and any person controlling the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act, in each
such case to the same extent as the foregoing indemnity from the Company to each
Underwriter but only with reference to information furnished in writing by or on
behalf of such Underwriter through J.P. Morgan Securities Inc. expressly for use
in the Registration Statement, the Prospectus, any preliminary prospectus or any
amendment or supplement thereto. In case any action shall be brought against the
Company, any of its directors, any officer of the Company who signed the
Registration Statement or any person controlling the Company based on the
Registration Statement, the Prospectus or any preliminary prospectus or any
amendment or supplement thereto and in respect of which indemnity may be sought
against any Underwriter, the Underwriter shall have the rights and duties given
to the Company (except that if the Company shall have assumed the defense
thereof, such Underwriter shall not be required to do so, but may employ
separate counsel therein and participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such Underwriter), and the
Company, its directors, any officers of the Company who signed the Registration
Statement and any person controlling the Company shall have the rights and
duties given to such Underwriter, by Section 7(b) hereof.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or judgments referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Securities or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Underwriters in connection with the statements or omissions which resulted
in such losses,
18
<PAGE>
claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other hand shall be deemed to be in the
same respective proportions as the total proceeds from the offering received by
the Company (before deducting expenses but after deducting the total
underwriting discounts and the commissions received by the Underwriters), and
the total underwriting discounts and the commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus, bear to the total price to the public of the Securities. The
relative fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
---
rata allocation (even if the Underwriters were treated as one entity for such
- ----
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
was offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7(d) are several in proportion to the
respective aggregate principal amount of Securities purchased by each of the
Underwriters hereunder and not joint.
The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
19
<PAGE>
8. Conditions of Underwriters' Obligations. The several obligations
---------------------------------------
of the Underwriters to purchase the Securities under this Agreement on the
Closing Date are subject to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) All the representations and warranties of the Company contained
in this Agreement shall be true and correct on the Closing Date with the same
force and effect as if made on and as of the Closing Date.
(b) The Registration Statement shall have become effective (or if a
post-effective amendment is required to be filed under the Securities Act, such
post-effective amendment shall have become effective) not later than 5:00 P.M.,
New York City time, on the date hereof; and no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
shall be in effect, and no proceedings for such purpose shall be pending before
or threatened by the Commission; the Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Securities Act and in
accordance with Section 5(a) hereof; and all requests for additional information
shall have been complied with to the satisfaction of the Underwriters;
(c) Subsequent to the date of this Agreement and prior to the Closing
Date there shall not have been any downgrading, nor shall any notice have been
given of any intended or potential downgrading or of any review for a possible
change that does not indicate the direction of the possible change, in the
rating accorded to any of the Company's securities or the securities of CNF
Trust I, a statutory business trust created under the Business Trust Act of the
State of Delaware, by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act.
(d) On the Closing Date the Securities shall have a rating of at
least Baa3 from Moody's Investors Service, Inc. and at least BBB from Standard &
Poor's Corporation as evidenced in a writing from such rating agencies or by
other evidence satisfactory to the Underwriters.
(e) (i) Since the date of the latest balance sheet included or
incorporated by reference in the Prospectus, except as otherwise set forth in or
contemplated by the Prospectus, there shall not have been any material adverse
change, or any development involving a prospective material adverse change, in
or affecting the condition, financial or otherwise, or in the earnings, affairs
or business prospects, whether or not arising in the ordinary course of
business, of the Company and its subsidiaries, taken as a whole, from that
described in the Prospectus,
20
<PAGE>
(ii) since the date of the latest balance sheet included or incorporated by
reference in the Prospectus there shall not have been any material adverse
change, or any development involving a prospective material adverse change, in
the capital stock or in the long-term debt of the Company from that set forth in
the Prospectus, (iii) the Company shall have no liability or obligation, direct
or contingent, which is material to the Company and its subsidiaries, taken as a
whole, other than those reflected in or contemplated by the Prospectus, (iv)
since the date of the latest balance sheet included or incorporated by reference
in the Prospectus, the Company has not sustained any material loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and (v) on the Closing Date, you shall have
received a certificate dated the Closing Date, signed on behalf of the Company
by the Chief Executive Officer, Chief Financial Officer, Treasurer, or any Vice
President of the Company, confirming the matters set forth in paragraphs (a),
(b), (c) and (d) of this Section 8 (except that such certification may be made
to the knowledge of the Company with respect to proceedings threatened by the
Commission and such certification need not cover the last clause of paragraph
(b) of Section 8).
(f) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing Date,
of Eberhard G.H. Schmoller, General Counsel for the Company, to the effect that:
(i) the Company and each of the Significant Subsidiaries has
been duly incorporated, is validly existing as a corporation in good
standing under the laws of its jurisdiction (other than jurisdictions
outside of the United States of America) of incorporation and has the
corporate power and corporate authority to conduct its business and to own,
lease and operate its properties as described in the Prospectus;
(ii) the Company and each of the Significant Subsidiaries is
duly qualified and is in good standing as a foreign corporation authorized
to do business in each jurisdiction (other than jurisdictions outside of
the United States of America) in which the nature of its business or its
ownership or leasing of property requires such qualification, except where
the failure to be so qualified or in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole;
(iii) except as set forth in the Prospectus, all of the
outstanding shares of capital stock of the Significant Subsidiaries have
been duly authorized and are owned of record by the Company (except for
directors qualifying shares), free and clear, to the knowledge of such
counsel, of any pledge, lien, security interest, charge, claim, equity or
21
<PAGE>
encumbrance of any kind (except for restrictions on transfer arising under
federal or state securities or blue sky laws);
(iv) to the knowledge of such counsel, the Company is not in
violation of its charter or by-laws and none of the Significant
Subsidiaries is in violation of its charter or by-laws, except for any such
violations which would not have a material adverse effect on the Company
and its subsidiaries taken as a whole;
(v) the execution, delivery and performance of this Agreement
and the Indenture by the Company, the compliance by the Company with its
obligations hereunder and thereunder, the issuance of the Securities and
the consummation of the transactions contemplated hereby and thereby do
not, to the knowledge of such counsel, require any consent, approval,
authorization, license or other order of any United States federal court
sitting in the State of California, any California state court or any
United States federal or California state regulatory body, administrative
agency or other governmental body under Applicable Laws (as defined below)
(except such as may be required under the Securities Act, the Exchange Act,
the Trust Indenture Act or other securities or Blue Sky laws) and do not
conflict with or constitute a breach of any of the terms or provisions of,
or a violation or a default under, the charter or by-laws of the Company or
any of the Significant Subsidiaries or, to the knowledge of such counsel,
any bond, debenture, note, indenture, mortgage, deed of trust, loan
agreement or any other agreement or other instrument to which the Company
or any of the Significant Subsidiaries is a party or by which the Company
or any of the Significant Subsidiaries or their respective properties are
bound that is material to the Company and its subsidiaries, taken as a
whole, or, to the knowledge of such counsel, violate or conflict with any
United States federal or California state laws or administrative
regulations or any rulings or decrees of any United States federal court
sitting in the State of California or any California state court, in each
case which are applicable to the Company or any of the Significant
Subsidiaries or their respective properties, except in any such case for
such conflicts, breaches, violations or defaults which would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole. Such counsel may state that, for purposes of such opinion, the term
"Applicable Laws" means those state laws of the State of California,
federal laws of the United States of America and portions of the Delaware
General Corporation Law (the "DGCL") which, in such counsel's experience,
are normally applicable to transactions of the type contemplated by this
Agreement (provided that the term "Applicable Laws" shall not include
United States federal or state securities or blue sky laws or the rules and
regulations thereunder, the Trust Indenture Act or the rules and
regulations of the Commission thereunder, the Investment Company Act of
1940, as amended, or the rules and regulations thereunder (collectively,
the "1940 Act"), any antifraud laws or any law,
22
<PAGE>
rule or regulation that may have become applicable as a result of any
Underwriter's involvement with the transactions contemplated by this
Agreement or because of any facts specifically pertaining to any
Underwriter), but without such counsel having made any special
investigation concerning the applicability of any other law, rule or
regulation;
(vi) other than as set forth or contemplated in the Prospectus,
to such counsel's knowledge, there are no legal or governmental
investigations, actions, suits or proceedings (other than any legislative
proceedings) pending or threatened against the Company or any of the
Significant Subsidiaries or any of their respective properties or to which
the Company or any of the Significant Subsidiaries is or may be a party or
to which any property of the Company or any of the Significant Subsidiaries
is or may be the subject in which there is a reasonable possibility of a
determination adverse to the Company or any of the Significant Subsidiaries
that would have, individually or in the aggregate, a material adverse
effect on, the Company and its subsidiaries taken as a whole;
(vii) to the knowledge of such counsel, each of the Company and
the Significant Subsidiaries owns, possesses or has obtained all licenses,
permits, certificates, consents, orders, approvals and other authorizations
from, and has made all declarations and filings with, all United States
federal and California state governmental authorities necessary to own or
lease, as the case may be, and to operate its properties and to carry on
its business as conducted as of the date hereof, except where the failure
to own, possess or obtain any such license, permit, certificate, consent,
order, approval or authorization or to make any such declaration or filing
would not have a material adverse effect on the Company and its
subsidiaries taken as a whole, and to the knowledge of such counsel,
neither the Company nor any of the Significant Subsidiaries has received
any actual notice of any proceeding relating to revocation or modification
of any such license, permit, certificate, consent, order, approval or other
authorization, except as described in or contemplated by the Registration
Statement or the Prospectus and except where the revocation or modification
thereof would not have a material adverse effect on the Company and its
subsidiaries taken as a whole; and
(viii) the documents incorporated by reference in the Prospectus
or any further amendments or supplements thereto made by the Company prior
to the Closing Date (other than the financial statements and schedules and
other financial and statistical data included or incorporated by reference
therein or omitted therefrom, and other than the exhibits thereto, as to
which such counsel need express no opinion) when they were filed with the
Commission, complied as to form in all material respects with the
requirements of the Exchange Act.
23
<PAGE>
Eberhard G.H. Schmoller shall further state that he or the Company's
legal department under his supervision have participated in conferences with
officers and other representatives of the Company, and representatives of the
independent public accountants for the Company and your representatives and
counsel, at which conferences the contents of the Registration Statement, the
Prospectus and related matters were discussed and although such counsel has not
independently verified and is not passing upon and assumes no responsibility for
the accuracy, completeness or fairness of the statements included or
incorporated by reference in the Registration Statement, the Prospectus or the
documents incorporated or deemed to be incorporated by reference therein and has
made no independent check or verification thereof, no facts have come to such
counsel's attention which have led him to believe that the Registration
Statement (other than (a) financial statements and schedules and other financial
or statistical data included or incorporated by reference in or omitted from (i)
the Registration Statement or (ii) the documents incorporated or deemed to be
incorporated by reference therein and (b) any Form T-1, as to which no statement
need be made) at its effective date, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or the Prospectus
(other than financial statements and schedules and other financial or
statistical data included or incorporated by reference in or omitted from (i)
the Prospectus or (ii) the documents incorporated or deemed to be incorporated
by reference therein, as to which no statement need be made), as of the date of
the Prospectus Supplement or the Closing Date, included any untrue statement of
a material fact or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading. Such counsel may further state that such opinion is
limited to matters arising under the federal laws of the United States of
America, the laws of the State of California and the DGCL, and such counsel
expresses no opinion as to the laws of any other jurisdiction or, in the case of
Delaware, any other Delaware laws, or as to the municipal laws or the laws of
any other local agencies or governmental authorities within the State of
California or any matters arising thereunder or relating thereto. Such counsel
may further state that any opinions as to good standing or due qualification of
the Company or any of its subsidiaries are based solely upon good standing and
other similar certificates of public officials. Such counsel may further state
that, insofar as such opinion concerns any bond, debenture, note, indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
referred to in clause (v) above or this Agreement, the Indenture, or the
Securities (collectively, "Relevant Agreements"), such counsel has assumed that
such Relevant Agreements are governed by and construed in accordance with the
internal laws of the State of California.
In rendering his opinions above, Mr. Schmoller may rely as to factual
matters on such certificates of the Company's officers, or of governmental
officials as he may deem relevant or necessary for such opinions and as to
matters governed by other than federal or California law or by the DGCL on
opinions of local counsel.
24
<PAGE>
(g) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing Date,
of Brown & Wood LLP, counsel for the Company, to the effect that:
(i) the Securities have been duly authorized by all necessary
corporate action on the part of the Company and (assuming the due
authorization, execution and delivery of the Indenture by the Trustee
thereunder), when executed and attested by duly authorized officers of the
Company under its corporate seal, authenticated, issued and delivered, all
in accordance with the provisions of the Indenture, and delivered to and
paid for by the Underwriters as set forth in this Agreement, will be
entitled to the benefits of the Indenture and will be valid and binding
obligations of the Company enforceable against the Company in accordance
with their terms, subject to bankruptcy, insolvency reorganization,
moratorium, arrangement, fraudulent conveyance, fraudulent transfer or
other similar laws relating to or affecting creditors' rights generally and
to general equitable principles (regardless of whether considered in a
proceeding in equity or at law), including concepts of commercial
reasonableness, good faith and fair dealing and the possible unavailability
of specific performance or injunctive relief;
(ii) this Agreement has been duly authorized by all necessary
corporate action on the part of the Company and has been duly executed and
delivered by the Company;
(iii) the Indenture has been duly qualified under the Trust
Indenture Act; the Indenture has been duly authorized by all necessary
corporate action on the part of the Company and has been duly executed and
delivered by the Company, and (assuming the due authorization, execution
and delivery of the Indenture by the Trustee) the Indenture is a valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium, arrangement, fraudulent conveyance, fraudulent
transfer or other similar laws relating to or affecting creditors' rights
generally and to general equitable principles (regardless of whether
considered in a proceeding in equity or at law), including concepts of
commercial reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief, and except
that no opinion need be expressed regarding Section 606 of the Indenture
and except as rights to indemnity and contribution may be limited by
applicable law or public policy;
(iv) the Registration Statement has become effective under the
Securities Act (assuming compliance with clause (2) of Rule 462(b) in the
case of any Additional Registration Statement) and, to the best of such
counsel's knowledge, no stop
25
<PAGE>
order suspending its effectiveness has been issued and no proceedings for
that purpose are pending before or threatened by the Commission;
(v) the statements under the captions "Description of Debt
Securities" (except for statements under such caption which have been
superseded by statements in the Prospectus Supplement and other than the
statements under the subcaption "-Global Securities") and "Description of
the Notes" (other than the statements under the subcaption "- Book-Entry,
Delivery and Form"), in the Prospectus, insofar as such statements
constitute a summary of certain provisions of the Indenture or the
Securities, accurately summarize such provisions in all material respects;
and
(vi) To such counsel's knowledge, no consent, approval,
authorization or other order of any federal regulatory body, federal
administrative agency or other federal governmental body of the United
States of America or any state regulatory body, state administrative agency
or other state governmental body of the States of California or New York is
legally required under Applicable Laws for the issuance and sale of the
Securities to the Underwriters as contemplated by this Agreement or the
public offering of the Securities contemplated by the Prospectus. Such
counsel may state that, for purposes of such opinion, the term "Applicable
Laws" means those state laws of the State of California and the State of
New York, federal laws of the United States of America and portions of the
DGCL which, in the experience of such counsel, are normally applicable to
transactions of the type contemplated by the Underwriting Agreement
(provided that the term "Applicable Laws" shall not include federal or
state securities or blue sky laws or any rules or regulations thereunder,
the Trust Indenture Act or the rules and regulations of the Commission
thereunder, the 1940 Act or the rules or regulations of the Commission
thereunder, any antifraud laws, any law or regulation relating to
transportation, aviation or similar matters, or any law, rule or regulation
that may have become applicable as a result of any Underwriter's
involvement with the transactions contemplated by this Agreement or because
of any facts specifically pertaining to any Underwriter).
Brown & Wood LLP shall further state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the independent public accountants for the Company
and your representatives and counsel, at which conferences the contents of the
Registration Statement, Prospectus and related matters were discussed, and
although such counsel has not independently verified and is not passing upon and
assumes no responsibility for the accuracy, completeness or fairness of the
statements included or incorporated by reference in the Registration Statement,
the Prospectus or the documents incorporated or deemed to be incorporated by
reference therein and has made no independent check or verification thereof (A)
such counsel is of the opinion that the Registration Statement,
26
<PAGE>
as amended if applicable (except for financial statements and schedules and
other financial or statistical data included or incorporated by reference
therein or omitted therefrom, the documents incorporated or deemed to be
incorporated by reference therein and the exhibits thereto, including any Form
T-1, as to which no opinion need be expressed) at the time it was declared
effective, complied as to form in all material respects with the applicable
requirements of the Securities Act and (B) no facts have come to such counsel's
attention which have led them to believe that the Registration Statement (other
than financial statements and schedules and other financial or statistical data
included or incorporated by reference in or omitted from the Registration
Statement or the documents incorporated or deemed to be incorporated by
reference therein and the exhibits thereto including any Form T-1, as to which
no statement need be made) at its effective date, contained any untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or the
Prospectus (other than financial statements and schedules and other financial or
statistical data included or incorporated by reference in or omitted from the
Prospectus or the documents incorporated or deemed to be incorporated by
reference therein, as to which no statement need be made), as of the date of the
Prospectus Supplement or the Closing Date, included any untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. Such counsel may further state that any opinions as to
good standing or due qualification of the Company or any of its subsidiaries are
based solely upon good standing and other similar certificates of public
officials. Such counsel may further state that such opinion is limited to
matters arising under the federal laws of the United States of America, the laws
of the States of California and New York and the DGCL, and such counsel
expresses no opinion as to the laws of any other jurisdiction or, in the case of
Delaware, any other Delaware laws, or as to the municipal laws or the laws of
any other local agencies or governmental authorities within the States of
California and New York or any matters arising thereunder or relating thereto.
In rendering their opinions above, Brown & Wood LLP may rely as to
factual matters on such certificates of the Company's officers or of
governmental officials as they may deem relevant or necessary for such opinions
and as to matters governed by other than federal or California or New York law
or by the DGCL on opinions of local counsel.
(h) The Underwriters shall have received on and as of the Closing
Date an opinion of Skadden, Arps, Slate, Meagher & Flom LLP, counsel to the
Underwriters, with respect to the due authorization and valid issuance of the
Securities, the Registration Statement, the Prospectus and other related matters
as the Underwriters may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable them to
pass upon such matters.
27
<PAGE>
In addition, Skadden, Arps, Slate, Meagher and Flom LLP, will make a
statement to the effect that such counsel has participated in conferences with
officers and other representatives of the Company and representatives of the
independent public accountants for the Company, at which conferences the
contents of the Registration Statement, Prospectus and related matters were
discussed, and, although such counsel has not independently verified and is not
passing upon and assume no responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement, except as
specified, no facts have come to such counsel's attention which lead such
counsel to believe that the Registration Statement (other than any financial
statements or other financial or statistical information therein and that part
of the Registration Statement that constitutes the Form T-1 as to which no
opinion is expressed) at its effective date contained any untrue statement or a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements contained therein not misleading, or
that the Prospectus as of its date or the Closing Date (other than any financial
statements or other financial or statistical information therein as to which no
opinion is expressed), contained any untrue statement of a material fact or
omitted to state any material fact necessary to make the statements contained
therein, in the light of the circumstances under which they were made, not
misleading.
(i) You shall have received a letter on and as of the date of this
Agreement, in form and substance satisfactory to you, from Arthur Andersen LLP
independent public accountants, with respect to the financial statements and
certain financial information contained in the Registration Statement and the
Prospectus, and you shall have received a letter on and as of the Closing Date
in form and substance satisfactory to you, from Arthur Andersen LLP, confirming
the letter delivered on the date of this Agreement.
(j) The Company shall not have failed at or prior to the Closing Date
to perform or comply with any of the agreements herein contained and required to
be performed or complied with by the Company at or prior to the Closing Date.
9. Effective Date of Agreement and Termination. This Agreement
-------------------------------------------
shall become effective upon the later of (i) execution of this Agreement and
(ii) when notification of the effectiveness of the Registration Statement has
been released by the Commission.
This Agreement may be terminated at any time prior to the Closing Date
by you by written notice to the Company if any of the following has occurred:
(i) since the respective dates as of which information is given in the
Prospectus, any material adverse change or development involving a prospective
material adverse change in the condition, financial or otherwise, or the
earnings, affairs, or business prospects of the Company and its subsidiaries,
considered as one enterprise, whether or not arising in the ordinary course of
business, which
28
<PAGE>
would, in your judgment, make it impracticable to market the Securities on the
terms and in the manner contemplated in the Prospectus, (ii) any outbreak or
escalation of hostilities or other national or international calamity or crisis
or material change in economic conditions, if the effect of such outbreak,
escalation, calamity, crisis or change on the financial markets of the United
States or elsewhere would, in your judgment, make it impracticable to market the
Securities on the terms and in the manner contemplated in the Prospectus, (iii)
the suspension or material limitation of trading in securities on the New York
Stock Exchange, the American Stock Exchange or the NASDAQ National Market System
or limitation on prices for securities on any such exchange or NASDAQ National
Market System, (iv) trading of any securities of the Company shall have been
suspended on any exchange, (v) the declaration of a banking moratorium by
either federal, California or New York State authorities or (vi) the taking of
any action by any federal, state or local government or agency in respect of its
monetary or fiscal affairs which in your judgment has a material adverse effect
on the financial markets in the United States and would, in your judgment, make
it impracticable to market the Securities on the terms and in the manner
contemplated by the Prospectus.
If on the Closing Date, any one or more of the Underwriters shall fail
or refuse to purchase the Securities which it or they have agreed to purchase
hereunder on such date and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters, as the case may be, agreed but
failed or refused to purchase is not more than one-tenth of the aggregate
principal amount of Securities to be purchased by all Underwriters on such date,
each non-defaulting Underwriter shall be obligated severally, in the proportion
which the aggregate principal amount of Securities set forth opposite its name
in Schedule I bears to the aggregate principal amount of Securities which all
the non-defaulting Underwriters have agreed to purchase, or in such other
proportion as you may specify, to purchase the Securities which such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused to
purchase on such date; provided that in no event shall the aggregate principal
--------
amount of Securities which any Underwriter has agreed to purchase pursuant to
Section 2 hereof be increased pursuant to this Section 9 by an amount in excess
of one-ninth of such aggregate principal amount of Securities without the
written consent of such Underwriter. If on the Closing Date any Underwriter or
Underwriters shall fail or refuse to purchase Securities and the aggregate
principal amount of Securities with respect to which such default occurs is more
than one-tenth of the aggregate principal amount of Securities to be purchased
on such date by all Underwriters and arrangements satisfactory to you and the
Company for purchase of such Securities are not made within 48 hours after such
default, this Agreement will terminate without liability on the part of any non-
defaulting Underwriter and the Company. In any such case which does not result
in termination of this Agreement, either you or the Company shall have the right
to postpone the Closing Date, but in no event for longer than seven days, in
order that the required changes, if any, in the Registration Statement and the
Prospectus or any other docu-
29
<PAGE>
ments or arrangements may be effected. Any action taken under this paragraph
shall not relieve any defaulting Underwriter from liability in respect of any
default of any such Underwriter under this Agreement.
10. Miscellaneous. Notices given pursuant to any provision of this
-------------
Agreement shall be addressed as follows: (a) if to the Company, to CNF
Transportation Inc., 3240 Hillview Avenue, Palo Alto, CA 94304, Attention:
General Counsel and (b) if to any Underwriter or to you, to you c/o J.P. Morgan
Securities Inc., 60 Wall Street, New York, New York 10260, Attention: Syndicate
Department, or in any case to such other address as the person to be notified
may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company and of the several Underwriters
set forth in or made pursuant to this Agreement shall remain operative and in
full force and effect, and will survive delivery of and payment for the
Securities, regardless of (i) any investigation, or statement as to the results
thereof, made by or on behalf of any Underwriter or by or on behalf of the
Company, the officers or directors of the Company or any controlling person of
the Company, (ii) acceptance of the Securities and payment for them hereunder
and (iii) termination of this Agreement.
If this Agreement shall be terminated by the Underwriters because of
any failure or refusal on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, the Company agrees to reimburse
the several Underwriters for all out-of-pocket expenses (including the
reasonable fees and disbursements of counsel) reasonably incurred by them.
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of the Company, the Underwriters, any controlling persons
referred to herein, the officers and directors referred to in Section 7 hereof
and their respective successors, assigns, heirs and legal representatives, and
shall be binding upon the Company and the Underwriters and their respective
successors and assigns, all as and to the extent provided in this Agreement, and
no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Securities from any of the several Underwriters merely because of
such purchase.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK INCLUDING, WITHOUT LIMITATION, SECTION 5-1401
OF THE NEW YORK GENERAL OBLIGATIONS LAW.
30
<PAGE>
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
31
<PAGE>
Please confirm that the foregoing correctly sets forth the agreement
among the Company and the Underwriters.
Very truly yours,
CNF TRANSPORTATION INC.
By /s/ Chutta Ratnathicam
---------------------------------
Name: Chutta Ratnathicam
Title: Senior Vice President and
Chief Financial Officer
J.P. MORGAN SECURITIES INC.
SALOMON SMITH BARNEY INC.
ABN AMRO INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
By: J.P. Morgan Securities Inc.
By /s/ Raymond Schmitt
-------------------------------
Name: Raymond Schmitt
Title: Vice President
<PAGE>
SCHEDULE I
----------
Principal Amount of
Underwriters Securities to be Purchased
- ------------ --------------------------
J.P. Morgan Securities Inc............... $ 70,000,000
Salomon Smith Barney Inc................. $ 70,000,000
ABN AMRO Incorporated.................... $ 30,000,000
Credit Suisse First Boston Corporation... $ 30,000,000
============
Total........... $200,000,000
<PAGE>
================================================================================
CNF TRANSPORTATION INC.
Issuer
to
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION,
Trustee
____________
INDENTURE
____________
Dated as of March 8, 2000
================================================================================
<PAGE>
Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act")
and Indenture
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
- ------------------- -----------------
<S> <C>
(S)310(a)(1) ......................................................... 607
(a)(2) ......................................................... 607
(b) ......................................................... 608
(S)312(a) ......................................................... 701
(b) ......................................................... 702
(c) ......................................................... 702
(S)313(a) ......................................................... 703
(b)(2) ......................................................... 703
(c) ......................................................... 703
(d) ......................................................... 703
(S)314(a) ......................................................... 704
(c)(1) ......................................................... 102
(c)(2) ......................................................... 102
(e) ......................................................... 102
(f) ......................................................... 102
(S)316(a)(last sentence) ......................................................... 101
(a)(1)(A) ......................................................... 502, 512
(a)(1)(B) ......................................................... 513
(b) ......................................................... 508
(S)317(a)(1) ......................................................... 503
(a)(2) ......................................................... 504
(b) ......................................................... 1003
(S)318(a) ......................................................... 108
</TABLE>
________________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions..................................................... 2
Section 102. Compliance Certificates and Opinions............................ 11
Section 103. Form of Documents Delivered to Trustee.......................... 11
Section 104. Acts of Holders................................................. 12
Section 105. Notices, etc.................................................... 14
Section 106. Notice to Holders of Securities; Waiver......................... 14
Section 107. Language of Notices............................................. 15
Section 108. Conflict with Trust Indenture Act............................... 15
Section 109. Effect of Headings and Table of Contents........................ 15
Section 110. Successors and Assigns.......................................... 15
Section 111. Separability Clause............................................. 15
Section 112. Benefits of Indenture........................................... 16
Section 113. Governing Law................................................... 16
Section 114. Legal Holidays.................................................. 16
Section 115. Counterparts.................................................... 16
Section 116. Judgment Currency............................................... 16
Section 117. Extension of Payment Dates...................................... 17
Section 118. Immunity of Stockholders, Directors, Officers and Agents of the
Company....................................................... 17
ARTICLE TWO
Securities Forms
Section 201. Forms Generally................................................. 17
Section 202. Form of Trustee's Certificate of Authentication................. 18
Section 203. Securities in Global Form....................................... 18
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series............................ 19
Section 302. Currency; Denominations......................................... 24
Section 303. Execution, Authentication, Delivery and Dating.................. 24
Section 304. Temporary Securities............................................ 25
Section 305. Registration, Transfer and Exchange............................. 26
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
Section 306. Mutilated, Destroyed, Lost and Stolen Securities................ 30
Section 307. Payment of Interest and Certain Additional Amounts; Rights to
Interest and Certain Additional Amounts Preserved............. 31
Section 308. Persons Deemed Owners........................................... 32
Section 309. Cancellation.................................................... 33
Section 310. Computation of Interest......................................... 33
ARTICLE FOUR
Satisfaction and Discharge of Indenture
Section 401. Satisfaction and Discharge...................................... 34
Section 402. Defeasance and Covenant Defeasance.............................. 35
Section 403. Application of Trust Money...................................... 40
Section 404. Effect on Subordination Provisions.............................. 40
ARTICLE FIVE
Remedies
Section 501. Events of Default............................................... 40
Section 502. Acceleration of Maturity; Rescission and Annulment.............. 42
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee....................................................... 43
Section 504. Trustee May File Proofs of Claim................................ 44
Section 505. Trustee May Enforce Claims without Possession of Securities or
Coupons....................................................... 44
Section 506. Application of Money Collected.................................. 45
Section 507. Limitations on Suits............................................ 45
Section 508. Unconditional Right of Holders to Receive Principal and any
Premium, Interest and Additional Amounts...................... 46
Section 509. Restoration of Rights and Remedies.............................. 46
Section 510. Rights and Remedies Cumulative.................................. 46
Section 511. Delay or Omission Not Waiver.................................... 47
Section 512. Control by Holders of Securities................................ 47
Section 513. Waiver of Past Defaults......................................... 47
Section 514. Waiver of Usury, Stay or Extension Laws......................... 48
Section 515. Undertaking for Costs........................................... 48
ARTICLE SIX
The Trustee
Section 601. Certain Rights of Trustee....................................... 48
Section 602. Notice of Defaults.............................................. 49
Section 603. Not Responsible for Recitals or Issuance of Securities.......... 50
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
Section 604. May Hold Securities............................................. 50
Section 605. Money Held in Trust............................................. 50
Section 606. Compensation and Reimbursement.................................. 50
Section 607. Corporate Trustee Required; Eligibility......................... 51
Section 608. Resignation and Removal; Appointment of Successor............... 52
Section 609. Acceptance of Appointment by Successor.......................... 53
Section 610. Merger, Conversion, Consolidation or Succession to Business..... 54
Section 611. Appointment of Authenticating Agent............................. 55
ARTICLE SEVEN
Holders Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders....... 56
Section 702. Preservation of Information; Communications to Holders.......... 57
Section 703. Reports by Trustee.............................................. 57
Section 704. Reports by Company.............................................. 57
ARTICLE EIGHT
Consolidation, Merger and Sales
Section 801. Company May Consolidate, Etc.................................... 58
Section 802. Successor Person Substituted for Company........................ 59
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures without Consent of Holders.............. 59
Section 902. Supplemental Indentures with Consent of Holders................. 60
Section 903. Execution of Supplemental Indentures............................ 62
Section 904. Effect of Supplemental Indentures............................... 62
Section 905. Reference in Securities to Supplemental Indentures.............. 62
Section 906. Effect on Senior Indebtedness................................... 62
Section 907. Conformity with Trust Indenture Act............................. 63
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium, Interest and Additional
Amounts..................................................... 63
Section 1002. Maintenance of Office or Agency................................ 63
Section 1003. Money for Securities Payments to Be Held in Trust.............. 64
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C>
Section 1004. Additional Amounts............................................. 66
Section 1005. Corporate Existence............................................ 66
Section 1006. Limitation on Liens............................................ 66
Section 1007. Waiver of Certain Covenants.................................... 69
Section 1008. Company Statement as to Compliance............................. 69
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article....................................... 69
Section 1102. Election to Redeem; Notice to Trustee.......................... 69
Section 1103. Selection by Trustee of Securities to be Redeemed.............. 70
Section 1104. Notice of Redemption........................................... 70
Section 1105. Deposit of Redemption Price.................................... 72
Section 1106. Securities Payable on Redemption Date.......................... 72
Section 1107. Securities Redeemed in Part.................................... 73
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article....................................... 74
Section 1202. Satisfaction of Sinking Fund Payments with Securities.......... 74
Section 1203. Redemption of Securities for Sinking Fund...................... 75
ARTICLE THIRTEEN
Repayment at the Option of Holders
Section 1301. Applicability of Article....................................... 75
ARTICLE FOURTEEN
Securities in Foreign Currencies
Section 1401. Applicability of Article....................................... 76
ARTICLE FIFTEEN
Meetings of Holders of Securities
Section 1501. Purposes for Which Meetings May Be Called...................... 76
</TABLE>
iv
<PAGE>
<TABLE>
<S> <C>
Section 1502. Call, Notice and Place of Meetings............................. 76
Section 1503. Persons Entitled to Vote at Meetings........................... 77
Section 1504. Quorum; Action................................................. 77
Section 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings.................................................... 78
Section 1506. Counting Votes and Recording Action of Meetings................ 79
ARTICLE SIXTEEN
Subordination of Subordinated Securities
Section 1601. Agreement to Subordinate....................................... 79
</TABLE>
v
<PAGE>
INDENTURE, dated as of March 8, 2000 (the "Indenture"), between CNF
TRANSPORTATION INC., a corporation duly organized and existing under the laws of
State of Delaware (hereinafter called the "Company"), having its principal
executive office located at 3240 Hillview Avenue, Palo Alto, California 94304,
and Bank One Trust Company, National Association, a banking association duly
organized and existing under the laws of the United States of America
(hereinafter called the "Trustee").
Recitals
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (hereinafter called the
"Securities"), unlimited as to principal amount, to bear such rates of interest,
to mature at such time or times, to be issued in one or more series, to have
such relative rankings in priority of payment, and to have such other provisions
as shall be fixed as hereinafter provided.
The Company has duly authorized the execution and delivery of this
Indenture. All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder that are required to be part of this
Indenture and, to the extent applicable, shall be governed by such provisions.
Now, Therefore, This Indenture Witnesseth:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as herein defined) thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the
Securities or of any series thereof and any Coupons (as herein defined) as
follows:
<PAGE>
ARTICLE ONE
Definitions And Other Provisions Of General Application
Section 101. Definitions.
Except as otherwise expressly provided in or pursuant to this Indenture or
unless the context otherwise requires, for all purposes of this Indenture:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(4) the words "herein", "hereof", "hereto" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(5) the word "or" is always used inclusively (for example, the phrase
"A or B" means "A or B or both", not "either A or B but not both");
(6) provisions apply to successive events and transactions;
(7) the masculine gender includes the feminine and the neuter; and
(8) references to agreements and other instruments include subsequent
amendments and supplements thereto.
Certain terms used principally in certain Articles hereof are defined in
those Articles.
"Act", when used with respect to any Holders, has the meaning specified
in Section 104.
"Additional Amounts" means any additional amounts which are required hereby
or by any Security, under circumstances specified herein or therein, to be paid
by the Company in respect of certain taxes, assessments or other governmental
charges imposed on Holders specified therein and which are owing to such
Holders; provided that such amounts are specifically identified as "Additional
Amounts" in the Board Resolution, Officers' Certificate or supplemental
indenture, as the case may be, establishing the terms of such Securities
pursuant to Section 301 hereof; and, provided, further, that the term Additional
Amounts shall not include any amounts identified as "additional interest" or
"compound interest" or by any similar terms which may be payable with respect to
the Securities of any series unless otherwise expressly provided in or pursuant
to this Indenture.
2
<PAGE>
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; and the term "Affiliated" has a meaning
correlative to the foregoing. For the purposes of this definition, "control",
when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 611 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in an official language of
the place of publication or in the English language, customarily published on
each day that is a Business Day in the place of publication, whether or not
published on days that are not Business Days in the place of publication, and of
general circulation in each place in connection with which the term is used or
in the financial community of each such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same place meeting the
foregoing requirements and in each case on any day that is a Business Day in the
place of publication.
"Bearer Security" means any Security in the form established pursuant
to Section 201 which is payable to bearer.
"Board of Directors" means the board of directors of the Company or any
committee of that board duly authorized to act generally or in any particular
respect for the Company hereunder.
"Board Resolution" means a copy of one or more resolutions, certified
by the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the date
of such certification, delivered to the Trustee.
"Business Day" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, any day other than a Saturday, Sunday or
other day on which banking institutions in The City of New York are authorized
or obligated by law, regulation or executive order to close; provided that such
term shall mean, when used with respect to any payment of principal of, or
premium or interest, if any, on, or Additional Amounts with respect to, the
Securities of any series to be made at any Place of Payment for such Securities,
unless otherwise specified pursuant to Section 301 with respect to such
Securities, any day other than a Saturday, Sunday or other day on which banking
institutions in such Place of Payment are authorized or obligated by law,
regulation or executive order to close.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, or, if at any time after the execution 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 at such
time.
"Common Stock" includes any stock of any class of the Company which has
no preference in respect of dividends or of amounts payable in the event of any
voluntary or
3
<PAGE>
involuntary liquidation, dissolution or winding up of the Company and which is
not subject to redemption by the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person, and any other obligor upon the
Securities.
"Company Request" and "Company Order" mean, respectively, a written
request or order, as the case may be, signed in the name of the Company by the
Chairman, the Chief Executive Officer, the President or a Vice President, and by
a Vice President, the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company, and delivered to the Trustee.
"Consolidated Assets" means, as of any particular time, the amount that
would be shown as total assets on the most recent consolidated balance sheet of
the Company and its consolidated subsidiaries prepared in accordance with GAAP
as of the end of a fiscal quarter.
"Consolidated Net Tangible Assets" means, as of any particular time,
the amount of Consolidated Assets after deducting therefrom (a) all current
liabilities (excluding current liabilities which are by their terms extendible
or renewable at the option of the obligor to a time more than 365 days after the
time of determination and excluding current maturities of long-term debt and
current maturities of capitalized lease obligations), and (b) all goodwill,
tradenames, trademarks, patents, debt discount and expense and other intangibles
in each case in this clause (b) net of applicable amortization, all as shown on
the most recent consolidated financial statements of the Company and its
consolidated subsidiaries prepared in accordance with GAAP as of the end of a
fiscal quarter.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country or the confederation which issued such
Foreign Currency and for the settlement of transactions by a central bank or
other public institutions of or within the international banking community, (ii)
the ECU both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Union or (iii) any
currency unit or composite currency other than the ECU for the purposes for
which it was established.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date of original execution of this
Indenture is located at One North State Street, 9th Floor, Chicago, Illinois
60602, Attention: Corporate Trust Administration.
"Corporation" includes corporations, partnerships, associations,
limited liability companies and other companies, and business trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Currency", with respect to any payment, deposit or other transfer in
respect of the principal of or any premium or interest on or any Additional
Amounts with respect to any
4
<PAGE>
Security, means Dollars or the Foreign Currency, as the case may be, in which
such payment, deposit or other transfer is required to be made by or pursuant to
the terms hereof or such Security and, with respect to any other payment,
deposit or transfer pursuant to or contemplated by the terms hereof or such
Security, means Dollars.
"CUSIP number" means the alphanumeric designation assigned to a
Security by Standard & Poor's Corporation, CUSIP Service Bureau.
"Defaulted Interest" has the meaning specified in Section 307.
"Depository" means, with respect to any Security issuable or issued in
the form of one or more global Securities, the Person designated as depository
by the Company in or pursuant to this Indenture, and, unless otherwise provided
with respect to any Security, any successor to such Person. If at any time there
is more than one such Person, "Depository" shall mean, with respect to any
Securities, the depository which has been appointed with respect to such
Securities.
"Dollars" or "$" means a dollar or other equivalent unit of legal
tender for payment of public or private debts in the United States of America.
"ECU" means the European Currency Unit as defined and revised from time
to time by the Council of the European Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Community.
"European Union" means the European Community, the European Coal and
Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 501.
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the ECU, issued by the government of
one or more countries other than the United States of America or by any
recognized confederation or association of such government.
"GAAP" means, unless otherwise specified with respect to any Securities
pursuant to Section 301, such accounting principles as are generally accepted in
the United States of America as of the date or time of any computation required
hereunder.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the other government or
governments in the confederation which issued the Foreign Currency in which the
principal of or any premium or interest on the relevant Security or any
Additional Amounts in respect thereof shall be payable, in each case where the
payment or payments thereunder are supported by the full faith and credit of
such government or governments or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America or such other government or governments, in each case where the timely
payment or payments thereunder are unconditionally guaranteed as a full faith
and credit obligation by the United States of America or such other government
or governments, and which, in the case of (i) or (ii), are not callable or
redeemable at the option of
5
<PAGE>
the issuer or issuers thereof, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any such
Government Obligation or a specific payment of interest on or principal of or
other amount with respect to any such Government Obligation held by such
custodian for the account of the holder of a depository receipt, provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the Government Obligation or
the specific payment of interest on or principal of or other amount with respect
to the Government Obligation evidenced by such depository receipt.
"Holder", in the case of any Registered Security, means the Person in
whose name such Security is registered in the Security Register and, in the case
of any Bearer Security, means the bearer thereof and, in the case of any Coupon,
means the bearer thereof.
"Indebtedness" means indebtedness for borrowed money.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and, with respect to any Security, by the terms and provisions of such Security
and any Coupon appertaining thereto established pursuant to Section 301 (as such
terms and provisions may be amended pursuant to the applicable provisions
hereof), provided, however, that, if at any time more than one Person is acting
as Trustee under this instrument, "Indenture" shall mean, with respect to any
one or more series of Securities for which such Person is Trustee, this
instrument as originally executed or as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof and shall include the terms of those
particular series of Securities for which such Person is Trustee established
pursuant to Section 301 (as such terms and provisions may be amended pursuant to
the applicable provisions hereof), exclusive, however, of any provisions or
terms which relate solely to other series of Securities for which such Person is
not Trustee, regardless of when such terms or provisions were adopted.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"interest", with respect to any Original Issue Discount Security which
by its terms bears interest only after Maturity, means interest payable after
Maturity.
"Interest Payment Date", with respect to any Security, means the Stated
Maturity of an installment of interest on such Security.
"Judgment Currency" has the meaning specified in Section 116.
"Lien" has the meaning set forth in Section 1006.
"Maturity", with respect to any Security, means the date on which the
principal of such Security or an installment of principal becomes due and
payable as provided in or pursuant to this Indenture or such Security, whether
at the Stated Maturity or by declaration of acceleration,
6
<PAGE>
notice of redemption or repurchase, notice of option to elect repayment or
otherwise, and includes a Redemption Date for such Security.
"New York Banking Day" has the meaning specified in Section 116.
"Office" or "Agency", with respect to any Securities, means an office
or agency of the Company maintained or designated in a Place of Payment for such
Securities pursuant to Section 1002 or any other office or agency of the Company
maintained or designated for such Securities pursuant to Section 1002 or, to the
extent designated or required by Section 1002 in lieu of such office or agency,
the Corporate Trust Office of the Trustee.
"Officers' Certificate" means a certificate signed by the Chairman, the
Chief Executive Officer, the President or a Vice President, and by a Vice
President, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company, that complies with the requirements of Section 314(e)
of the Trust Indenture Act and is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company, that, if required by the Trust Indenture
Act, complies with the requirements of Section 314(e) of the Trust Indenture
Act.
"Original Issue Discount Security" means a Security issued pursuant to
this Indenture which provides for an amount less than the principal face amount
thereof to be due and payable upon declaration of acceleration pursuant to
Section 502.
"Outstanding", when used with respect to any Securities, means, as of
the date of determination, all such Securities theretofore authenticated and
delivered under this Indenture, except:
(a) any such Security theretofore cancelled by the Trustee or the
Security Registrar or delivered to the Trustee or the Security
Registrar for cancellation;
(b) any such Security for whose payment at the Maturity thereof money
in the necessary amount has been theretofore deposited pursuant
hereto (other than pursuant to Section 402) with the Trustee or
any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such Securities and
any Coupons appertaining thereto, provided that, if such
Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(c) any such Security with respect to which the Company has effected
defeasance or covenant defeasance pursuant to Section 402, except
to the extent provided in Section 402;
(d) any such Security which has been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, unless
there shall have been presented to the Trustee proof satisfactory
to it and to the Company that such Security is held by a bona
7
<PAGE>
fide purchaser in whose hands such Security is a valid obligation
of the Company; and
(e) any such Security converted or exchanged as contemplated by this
Indenture into Common Stock or other securities, if the terms of
such Security provide for such conversion or exchange pursuant to
Section 301;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders of Securities for quorum purposes, (i) the principal amount
of an Original Issue Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such purposes shall
be equal to the amount of the principal thereof that pursuant to the terms of
such Original Issue Discount Security would be declared (or shall have been
declared to be) due and payable upon a declaration of acceleration thereof
pursuant to Section 502 at the time of such determination, and (ii) the
principal amount of any Indexed Security that may be counted in making such
determination and that shall be deemed outstanding for such purpose shall be
equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided in or pursuant to this Indenture, and (iii)
the principal amount of a Security denominated in a Foreign Currency shall be
the Dollar equivalent, determined on the date of original issuance of such
Security, of the principal amount (or, in the case of an Original Issue Discount
Security, the Dollar equivalent on the date of original issuance of such
Security of the amount determined as provided in (i) above) of such Security,
and (iv) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate (other than a Trust) of the Company or such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in making any such
determination or relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible
Officer of the Trustee knows to be so owned shall be so disregarded. Securities
so owned which shall have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee (A)
the pledgee's right so to act with respect to such Securities and (B) that the
pledgee is not the Company or any other obligor upon the Securities or any
Coupons appertaining thereto or an Affiliate (other than a Trust) of the Company
or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, or any premium or interest on, or any Additional Amounts with
respect to, any Security or any Coupon on behalf of the Company.
"Person" means any individual, Corporation, joint venture, joint-stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", with respect to any Security, means the place or
places where the principal of, or any premium or interest on, or any Additional
Amounts with respect to such Security are payable as provided in or pursuant to
this Indenture or such Security.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same indebtedness as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under
8
<PAGE>
Section 306 in exchange for or in lieu of a lost, destroyed, mutilated or stolen
Security or any Security to which a mutilated, destroyed, lost or stolen Coupon
appertains shall be deemed to evidence the same indebtedness as the lost,
destroyed, mutilated or stolen Security or the Security to which a mutilated,
destroyed, lost or stolen Coupon appertains.
"Principal Property" means any manufacturing, distribution or
warehousing facility owned by the Company or any Subsidiary (including any of
the foregoing acquired after the date of this Indenture) and located within the
United States of America (including the states thereof and the District of
Columbia but excluding its territories, its possessions and other areas subject
to its jurisdiction), the gross book value of which exceeds 1% of the Company's
Consolidated Net Tangible Assets at the date of determination, in each case
other than any of the foregoing which is determined by the Board of Directors
not to be a Principal Property because, in the opinion of the Board of
Directors, such facility is not of material importance to the total business
conducted by the Company and its subsidiaries taken as a whole.
"Redemption Date", with respect to any Security or portion thereof to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture or such Security.
"Redemption Price", with respect to any Security or portion thereof to
be redeemed, means the price at which it is to be redeemed as determined by or
pursuant to this Indenture or such Security.
"Registered Security" means any Security established pursuant to
Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Registered
Security on any Interest Payment Date therefor means the date, if any, specified
in or pursuant to this Indenture or such Security as the record date for the
payment of such interest.
"Required Currency" has the meaning specified in Section 116.
"Responsible Officer" means any officer of the Trustee in its Corporate
Trust Office and also means, with respect to a particular corporate trust
matter, any other officer or employee of the Trustee to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Subsidiary" means any Subsidiary of the Company (i)
substantially all of the operating assets of which are located and the principal
business of which is carried on within the United States of America (including
the states thereof and the District of Columbia but excluding its territories,
its possessions and other areas subject to its jurisdiction); (ii) which was in
existence on the date of this Indenture or thereafter becomes a Subsidiary of
the Company; and (iii) which owns a Principal Property.
"Secured Indebtedness" has the meaning specified in Section 1006.
"Security" or "Securities" means any note or notes, bond or bonds,
debenture or debentures, or any other evidences of indebtedness, as the case may
be, authenticated and delivered under this Indenture; provided, however, that,
if at any time there is more than one
9
<PAGE>
Person acting as Trustee under this Indenture, "Securities", with respect to any
such Person, shall mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness," when used with respect to the Subordinated
Securities of any series, shall have the meaning established pursuant to Section
301(24) with respect to the Subordinated Securities of such series.
"Special Record Date" for the payment of any Defaulted Interest on any
Registered Security means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", with respect to any Security or any installment of
principal thereof or interest thereon or any Additional Amounts with respect
thereto, means the date established by or pursuant to this Indenture or such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is, or such Additional Amounts are, due and
payable.
"Subordinated Security" or "Subordinated Securities" means Securities
which, pursuant to Section 301(24), are expressly made subordinate in right of
payment to Senior Indebtedness.
"Subordination Provisions", when used with respect to the Subordinated
Securities of any series, shall have the meaning established pursuant to Section
301(24) with respect to the Subordinated Securities of such series.
"Subsidiary" means a corporation or other entity (i) more than 50% of
the outstanding voting stock (or equivalent equity interest having voting power
in the case of an entity other than a corporation) of which is owned, directly
or indirectly, by the Company and/or one or more other Subsidiaries and (ii) if
such entity is a partnership, joint venture, limited liability company or
similar entity, the Company or another Subsidiary is the managing general
partner or managing member of or otherwise controls such entity. For the
purposes of this definition, (i) "voting stock (or equivalent equity interest
having voting power in the case of an entity other than a corporation)" means
capital stock or equity interest, as the case may be, which ordinarily has
voting power for the election of directors (or equivalent persons, in the case
of an entity other than a corporation), whether at all times or only so long as
no senior class of stock has such voting power by reason of any contingency, and
(ii) "control" means, with respect to any entity, the possession of the power to
direct or cause the direction of the management and policies of such entity.
"Trust" means CNF Trust II and CNF Trust III, each a Delaware business
trust, and their respective successors.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or a particular
provision thereof shall mean such Act or provision, as the case may be, as
amended or replaced from time to time or as supplemented
10
<PAGE>
from time to time by rules or regulations adopted by the Commission under or in
furtherance of the purposes of such Act or provision, as the case may be.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean each Person
who is then a Trustee hereunder; provided, however, that if at any time there is
more than one such Person, "Trustee" shall mean each such Person and as used
with respect to the Securities of any series shall mean the Trustee with respect
to the Securities of such series.
"United States", except as otherwise provided in or pursuant to this
Indenture or any Security, means the United States of America (including the
states thereof and the District of Columbia), its territories, its possessions
and other areas subject to its jurisdiction.
"United States Alien", except as otherwise provided in or pursuant to
this Indenture or any Security, means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"United States of America" means the United States of America.
"United States Person" means any citizen or resident of the United
States, any corporation, partnership or other entity created or organized in or
under the laws of the United States, any estate the income of which is subject
to United States federal income taxation regardless of its source, or any trust
whose administration is subject to the primary supervision of a United States
court and which has one or more United States fiduciaries who have the authority
to control all substantial decisions of the trust.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "Vice President".
Section 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in or pursuant to this
Indenture, upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents or any of them is specifically required by any provision of
this Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
11
<PAGE>
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, unless such
officer knows that the opinion with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such Opinion of Counsel may
be based upon a certificate or opinion of, or representations by, an officer or
officers of the Company, a governmental official or officials or any other
Person or Persons, unless such counsel knows that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or any Security, they may, but need not, be
consolidated and form one instrument.
Section 104. Acts of Holders.
(1) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by or pursuant to this Indenture to be made,
given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing. If, but only if, Securities of a series
are issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided in or pursuant to
this Indenture to be made, given or taken by Holders of Securities of such
series may, alternatively, be embodied in and evidenced by the record of Holders
of Securities of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions of Article
Fifteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any Person of a Security, shall be sufficient for any purpose
of this Indenture and (subject to Section 315 of the Trust Indenture Act)
conclusive in favor of the Trustee and the Company and any agent of the Trustee
or the Company, if made in the manner provided in this Section. The record of
any meeting of Holders of Securities shall be proved in the manner provided in
Section 1506.
Without limiting the generality of this Section 104, unless otherwise
provided in or pursuant to this Indenture, a Holder, including a Depository that
is a Holder of a global Security,
12
<PAGE>
may make, give or take, by a proxy or proxies, duly appointed in writing, any
request, demand, authorization, direction, notice, consent, waiver or other Act
provided in or pursuant to this Indenture or the Securities to be made, given or
taken by Holders, and a Depository that is a Holder of a global Security may
provide its proxy or proxies to the beneficial owners of interests in any such
global Security through such Depository's standing instructions and customary
practices.
(2) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient and in accordance with such reasonable rules as the Trustee may
determine; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
(3) The ownership, principal amount and serial numbers of Registered
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, shall be proved by the Security Register.
(4) The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, may be proved by the production of such
Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary reasonably acceptable to the Company,
wherever situated, if such certificate shall be deemed by the Company and the
Trustee to be satisfactory, showing that at the date therein mentioned such
Person had on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such certificate or
affidavit is deemed by the Company and the Trustee to be satisfactory. The
Trustee and the Company may assume that such ownership of any Bearer Security
continues until (1) another certificate or affidavit bearing a later date issued
in respect of the same Bearer Security is produced, or (2) such Bearer Security
is produced to the Trustee by some other Person, or (3) such Bearer Security is
surrendered in exchange for a Registered Security, or (4) such Bearer Security
is no longer Outstanding. The ownership, principal amount and serial numbers of
Bearer Securities held by the Person so executing such instrument or writing and
the date of the commencement and the date of the termination of holding the same
may also be proved in any other manner which the Company and the Trustee deem
sufficient.
(5) If the Company shall solicit from the Holders of any Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may at its option (but is not obligated to), by
Board Resolution, fix in advance a record date for the determination of Holders
of Registered Securities entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or other
Act may be given before or after such record date, but only the Holders of
Registered Securities of record at the close of business on such record date
shall be deemed to be Holders for the purpose of determining whether Holders of
the requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Securities shall be
computed as of such record date; provided that no such authorization, agreement
or consent by the Holders of Registered
13
<PAGE>
Securities shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than six months after the record
date.
(6) Any request, demand, authorization, direction, notice, consent,
waiver or other Act by the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done or suffered to be done by the Trustee, any Security
Registrar, any Paying Agent or the Company in reliance thereon, whether or not
notation of such Act is made upon such Security.
Section 105. Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Company addressed to the attention of its Treasurer, with a copy
addressed to the attention of its General Counsel, in each case at the
address of its principal office specified in the first paragraph of
this instrument or at any other address previously furnished in writing
to the Trustee by the Company.
Section 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to this
Indenture, where this Indenture provides for notice to Holders of Securities of
any event,
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security affected by such
event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities, if any, if published in an Authorized Newspaper in The City
of New York and, if such Securities are then listed on any stock
exchange outside the United States of America, in an Authorized
Newspaper in such city as the Company shall advise the Trustee that
such stock exchange so requires, on a Business Day at least twice, the
first such publication to be not earlier than the earliest date and the
second such publication not later than the latest date prescribed for
the giving of such notice.
In any case where notice to Holders of Registered Securities is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder of a
14
<PAGE>
Registered Security shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any notice to
Holders of Bearer Securities given as provided herein. Any notice which is
mailed in the manner herein provided shall be conclusively presumed to have been
duly given or provided. In the case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
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 of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
Section 107. Language of Notices.
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in the
English language, except that, if the Company so elects, any published notice
may be in an official language of the country of publication.
Section 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any duties
under any required provision of the Trust Indenture Act imposed hereon by
Section 318(c) thereof, such required provision shall control.
Section 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
15
<PAGE>
Section 111. Separability Clause.
In case any provision in this Indenture, any Security or any Coupon
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not, to the fullest extent
permitted by law, in any way be affected or impaired thereby.
Section 112. Benefits of Indenture.
Nothing in this Indenture, any Security or any Coupon, express or
implied, shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent and their successors hereunder, the Holders of
Securities or Coupons, and, in the case of the Subordinated Securities of any
series, the holders of Senior Indebtedness with respect to such series, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 113. Governing Law.
This Indenture, the Securities and any Coupons shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made or instruments entered into and, in each case, performed in said
State.
Section 114. Legal Holidays.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, in any case where any Interest Payment Date, Stated Maturity or
Maturity of, or any other day on which a payment is due with respect to, any
Security shall be a day which is not a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture, any Security or any
Coupon other than a provision in any Security or Coupon or in the Board
Resolution, Officers' Certificate or supplemental indenture establishing the
terms of any Security that specifically states that such provision shall apply
in lieu hereof) payment need not be made at such Place of Payment on such date
but such payment may be made on the next succeeding day that is a Business Day
at such Place of Payment with the same force and effect as if made on the
Interest Payment Date, at the Stated Maturity or Maturity or on any such other
payment date, as the case may be, and no interest shall accrue on the amount
payable on such date or at such time for the period from and after such Interest
Payment Date, Stated Maturity, Maturity or other payment date, as the case may
be, to the next succeeding Business Day.
Section 115. Counterparts.
This Indenture may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
Section 116. Judgment Currency.
The Company 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
premium or interest, if any, or Additional Amounts 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
16
<PAGE>
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 preceding that on which a final unappealable judgment is given and
(b) its obligations under this Indenture 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 actual 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 actual 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 sum 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 obligated by law,
regulation or executive order to be closed. The provisions of this Section 116
shall not be applicable with respect to any payment due on a Security which is
payable in Dollars.
Section 117. Extension of Payment Dates.
In the event that (i) the terms of any Security or Coupon appertaining
thereto established in or pursuant to this Indenture permit the Company or any
Holder thereof to extend the date on which any payment of principal of, or
premium, if any, or interest, if any, on, or Additional Amounts, if any, with
respect to such Security or Coupon is due and payable and (ii) the due date for
any such payment shall have been so extended, then all references herein to the
Stated Maturity of such payment (and all references of like import) shall be
deemed to refer to the date as so extended.
Section 118. Immunity of Stockholders, Directors, Officers and Agents
of the Company.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture, or in any Security, or because of any indebtedness
evidenced thereby, shall be had against any past, present or future stockholder,
employee, officer or director, as such, of the Company or of any predecessor or
successor, either directly or through the Company or any predecessor or
successor, under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders and as part of the consideration for
the issue of the Securities.
ARTICLE TWO
Securities Forms
Section 201. Forms Generally.
Each Registered Security, Bearer Security, Coupon and temporary or
permanent global Security issued pursuant to this Indenture shall be in
substantially the form established in or
17
<PAGE>
pursuant to one or more Board Resolutions and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, shall
have such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by or pursuant to this Indenture or any indenture
supplemental hereto and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined by the officer of the Company executing
such Security or Coupon as evidenced by the execution of such Security or
Coupon.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall be issuable in registered form without Coupons.
Definitive Securities and definitive Coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officer of the Company executing such
Securities or Coupons, as evidenced by the execution of such Securities or
Coupons.
Section 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Bank One Trust Company, National Association,
as Trustee
By __________________________________________
Authorized Signatory
Section 203. Securities in Global Form.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall not be issuable in global form. If Securities
of a series shall be issuable in temporary or permanent global form, any such
Security may provide that it or any number of such Securities shall represent
the aggregate amount of all Outstanding Securities of such series (or such
lesser amount as is permitted by the terms thereof) from time to time endorsed
thereon and may also provide that the aggregate amount of Outstanding Securities
represented thereby may from time to time be increased or reduced to reflect
exchanges. Any endorsement of any Security in global form to reflect the amount,
or any increase or decrease in the amount, or changes in the rights of Holders,
of Outstanding Securities represented thereby shall be made in such manner and
by such Person or Persons as shall be specified therein or pursuant to Section
301 with respect to such Security or in the Company Order to be delivered
pursuant to Section 303 or 304 with respect thereto. Subject to the provisions
of Section 303 and, if applicable,
18
<PAGE>
Section 304, the Trustee shall deliver and redeliver any Security in global form
in the manner and upon instructions given by the Person or Persons specified
therein or pursuant to Section 301 with respect to such Security or in the
applicable Company Order. If a Company Order pursuant to Section 303 or 304 has
been, or simultaneously is, delivered, any instructions by the Company with
respect to a Security in global form shall be in writing but need not be
accompanied by or contained in an Officers' Certificate and need not be
accompanied by an Opinion of Counsel. Notwithstanding the foregoing provisions
of this paragraph, in the event a global Security is exchangeable for definitive
Securities as provided in Section 305, then, unless otherwise provided in or
pursuant to this Indenture with respect to the Securities of such series, the
Trustee shall deliver and redeliver such global Security to the extent necessary
to effect such exchanges, shall endorse such global Security to reflect any
decrease in the principal amount thereof resulting from such exchanges and shall
take such other actions, all as contemplated by Section 305.
Notwithstanding the provisions of Section 307, unless otherwise
specified in or pursuant to this Indenture or any Securities, payment of
principal of, any premium and interest on, and any Additional Amounts in respect
of any Security in temporary or permanent global form shall be made to the
Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a global Security (i) in the case of a
global Security in registered form, the Holder of such global Security in
registered form, or (ii) in the case of a global Security in bearer form, the
Person or Persons specified pursuant to Section 301.
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued in
one or more series.
With respect to any Securities to be authenticated and delivered
hereunder, there shall be established in or pursuant to one or more Board
Resolutions and set forth in an Officers' Certificate, or established in one or
more indentures supplemental hereto, prior to the issuance of any Securities of
a series,
(1) the title of the Securities of such series;
(2) any limit upon the aggregate principal amount of the
Securities of such series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of,
other Securities of such series pursuant to Section 304, 305, 306, 905
or 1107, upon repayment in part of any Security of such series pursuant
to Article Thirteen
19
<PAGE>
or upon surrender in part of any Security for conversion or exchange
into Common Stock or other securities pursuant to its terms);
(3) if such Securities are to be issuable as Registered
Securities, as Bearer Securities or alternatively as Bearer Securities
and Registered Securities, and whether the Bearer Securities are to be
issuable with Coupons, without Coupons or both, and any restrictions
applicable to the offer, sale or delivery of the Bearer Securities and
the terms, if any, upon which Bearer Securities may be exchanged for
Registered Securities and vice versa;
(4) if any of such Securities are to be issuable in global form,
when any of such Securities are to be issuable in global form and (i)
whether such Securities are to be issued in temporary or permanent
global form or both, (ii) whether beneficial owners of interests in any
such global Security may exchange such interests for Securities of the
same series and of like tenor and of any authorized form and
denomination, and the circumstances under which any such exchanges may
occur, if other than in the manner specified in Section 305, (iii) the
name of the Depository with respect to any such global Security and
(iv) if applicable and in addition to the Persons specified in Section
305, the Person or Persons who shall be entitled to make any
endorsements on any such global Security and to give the instructions
and take the other actions with respect to such global Security
contemplated by the first paragraph of Section 203;
(5) if any of such Securities are to be issuable as Bearer
Securities, the date as of which any such Bearer Security shall be
dated (if other than the date of original issuance of the first of such
Securities to be issued);
(6) if any of such Securities are to be issuable as Bearer
Securities, whether interest in respect of any portion of a temporary
Bearer Security in global form payable in respect of an Interest
Payment Date therefor prior to the exchange, if any, of such temporary
Bearer Security for definitive Securities shall be paid to any clearing
organization with respect to the portion of such temporary Bearer
Security held for its account and, in such event, the terms and
conditions (including any certification requirements) upon which any
such interest payment received by a clearing organization will be
credited to the Persons entitled to interest payable on such Interest
Payment Date;
(7) the date or dates, or the method or methods, if any, by which
such date or dates shall be determined, on which the principal of such
Securities is payable;
(8) the rate or rates at which such Securities shall bear
interest, if any, or the method or methods, if any, by which such rate
or rates are to be determined, the date or dates, if any, from which
such interest shall accrue or the method or methods, if any, by which
such date or dates are to be determined, the Interest Payment Dates, if
any, on which such interest shall be payable and the Regular Record
Date, if any, for the interest payable on Registered Securities on any
Interest Payment Date, the notice, if any, to Holders regarding the
determination of interest on a floating rate Security and the manner of
giving such notice, and the basis upon which interest shall be
calculated if other than that of a 360-day year of twelve 30-day
months;
20
<PAGE>
(9) if in addition to or other than the Borough of Manhattan, The
City of New York, the place or places where the principal of, any
premium and interest on or any Additional Amounts with respect to such
Securities shall be payable, any of such Securities that are Registered
Securities may be surrendered for registration of transfer or exchange,
any of such Securities may be surrendered for conversion or exchange
and notices or demands to or upon the Company in respect of such
Securities and this Indenture may be served;
(10) whether any of such Securities are to be redeemable at the
option of the Company and, if so, the date or dates on which, the
period or periods within which, the price or prices at which and the
other terms and conditions upon which such Securities may be redeemed,
in whole or in part, at the option of the Company;
(11) if the Company is obligated to redeem or purchase any of such
Securities pursuant to any sinking fund or analogous provision or at
the option of any Holder thereof and, if so, the date or dates on
which, the period or periods within which, the price or prices at which
and the other terms and conditions upon which such Securities shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation, and any provisions for the remarketing of such Securities
so redeemed or purchased;
(12) the denominations in which any of such Securities that are
Registered Securities shall be issuable if other than denominations of
$1,000 and any integral multiple thereof, and the denominations in
which any of such Securities that are Bearer Securities shall be
issuable if other than the denomination of $5,000;
(13) whether the Securities of the series will be convertible into
and/or exchangeable for Common Stock or other securities, and if so,
the terms and conditions upon which such Securities will be so
convertible or exchangeable, and any deletions from or modifications or
additions to this Indenture to permit or to facilitate the issuance of
such convertible or exchangeable Securities or the administration
thereof;
(14) if other than the principal amount thereof, the portion of
the principal amount of any of such Securities that shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502 or the method by which such portion is to be determined;
(15) if other than Dollars, the Foreign Currency in which payment
of the principal of, any premium or interest on or any Additional
Amounts with respect to any of such Securities shall be payable;
(16) if the principal of, any premium or interest on or any
Additional Amounts with respect to any of such Securities are to be
payable, at the election of the Company or a Holder thereof or
otherwise, in Dollars or in a Foreign Currency other than that in which
such Securities are stated to be payable, the date or dates on which,
the period or periods within which, and the other terms and conditions
upon which, such election may be made, and the time and manner of
determining the exchange rate between the Currency in which such
Securities are stated to be payable and the Currency in which
21
<PAGE>
such Securities or any of them are to be paid pursuant to such
election, and any deletions from or modifications of or additions to
the terms of this Indenture to provide for or to facilitate the
issuance of Securities denominated or payable, at the election of the
Company or a Holder thereof or otherwise, in a Foreign Currency;
(17) whether the amount of payments of principal of, any premium
or interest on or any Additional Amounts with respect to such
Securities may be determined with reference to an index, formula or
other method or methods (which index, formula or method or methods may
be based, without limitation, on one or more Currencies, commodities,
equity indices or other indices), and, if so, the terms and conditions
upon which and the manner in which such amounts shall be determined and
paid or payable;
(18) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to any of
such Securities, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein,
and whether Section 1007 shall be applicable with respect to any such
additional covenants;
(19) if either or both of Section 402(2) relating to defeasance or
Section 402(3) relating to covenant defeasance shall not be applicable
to the Securities of such series, or any covenants in addition to those
specified in Section 402(3) relating to the Securities of such series
which shall be subject to covenant defeasance, and, if the Securities
of such series are subject to repurchase or repayment at the option of
the Holders thereof pursuant to Article Thirteen, if the Company's
obligation to repurchase or repay such Securities will be subject to
satisfaction and discharge pursuant to Section 401 or to defeasance
pursuant to Section 402, and, if the Holders of such Securities have
the right to convert or exchange such Securities into Common Stock or
other securities, if the right to effect such conversion or exchange
will be subject to satisfaction and discharge pursuant to Section 401
or to defeasance pursuant to Section 402, and any deletions from, or
modifications or additions to, the provisions of Article Four in
respect of the Securities of such series;
(20) if any of such Securities are to be issuable upon the
exercise of warrants, and the time, manner and place for such
Securities to be authenticated and delivered;
(21) if any of such Securities are issuable in global form and are
to be issuable in definitive form (whether upon original issue or upon
exchange of a temporary Security) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
then the form and terms of such certificates, documents or conditions;
(22) if there is more than one Trustee, the identity of the
Trustee and, if not the Trustee, the identity of each Security
Registrar, Paying Agent or Authenticating Agent with respect to such
Securities;
(23) the Person to whom any interest on any Registered Security of
such series shall be payable, if other than the Person in whose name
the Registered Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular
22
<PAGE>
Record Date for such interest, the manner in which, or the Person to
whom, any interest on any Bearer Security of such series shall be
payable, if other than upon presentation and surrender of the Coupons
appertaining thereto as they severally mature, and the extent to which,
or the manner in which, any interest payable on a temporary global
Security will be paid if other than in the manner provided in this
Indenture;
(24) If the Securities of such series are Subordinated Securities,
the terms pursuant to which the Securities of such series will be made
subordinate in right of payment to Senior Indebtedness and the
definition of such Senior Indebtedness with respect to such series (in
the absence of an express statement to the effect that the Securities
of such series are subordinate in right of payment to all such Senior
Indebtedness, the Securities of such series shall not be subordinate to
Senior Indebtedness and shall not constitute Subordinated Securities);
and, in the event that the Securities of such series are Subordinated
Securities, a Board Resolution, Officers' Certificate or supplemental
indenture, as the case may be, establishing the terms of such series
shall expressly state which articles, sections or other provisions
thereof constitute the "Subordination Provisions" with respect to the
Securities of such series;
(25) whether and under what circumstances the Company will pay
Additional Amounts on such Securities to any Holder who is a United
States Alien in respect of any specified tax, assessment or other
governmental charge and, if so, whether the Company will have the
option to redeem such Securities rather than pay such Additional
Amounts; and
(26) any other terms of such Securities and any deletions from or
modifications or additions to this Indenture in respect of such
Securities.
All Securities of any one series and all Coupons, if any, appertaining
to Bearer Securities of such series shall be substantially identical except as
to Currency of payments due thereunder, denomination and the rate of interest,
or method of determining the rate of interest, if any, Maturity, and the date
from which interest, if any, shall accrue and except as may otherwise be
provided by the Company in or pursuant to the Board Resolution and set forth in
the Officers' Certificate or in any indenture or indentures supplemental hereto
pertaining to such series of Securities. The terms of the Securities of any
series may provide, without limitation, that the Securities shall be
authenticated and delivered by the Trustee on original issue from time to time
upon telephonic or written order of persons designated in the Board Resolution,
Officers" Certificate or supplemental indenture, as the case may be, pertaining
to such series of Securities (telephonic instructions to be promptly confirmed
in writing by such person) and that such persons are authorized to determine,
consistent with such Board Resolution, Officers' Certificate or supplemental
indenture, such terms and conditions of the Securities of such series as are
specified in such Board Resolution, Officers' Certificate or supplemental
indenture. All Securities of any one series need not be issued at the same time
and, unless otherwise so provided by the Company as contemplated by this Section
301, a series may be reopened from time to time without consent of any Holder
for issuances of additional Securities of such series or to establish additional
terms of such series of Securities.
23
<PAGE>
If any of the terms of the Securities of any series shall be
established by action taken by or pursuant to a Board Resolution, the Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of such series.
Section 302. Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture, the
principal of, any premium and interest on and any Additional Amounts with
respect to the Securities shall be payable in Dollars. Unless otherwise provided
in or pursuant to this Indenture, Registered Securities denominated in Dollars
shall be issuable in registered form without Coupons in denominations of $1,000
and any integral multiple thereof, and the Bearer Securities denominated in
Dollars shall be issuable in the denomination of $5,000. Securities not
denominated in Dollars shall be issuable in such denominations as are
established with respect to such Securities in or pursuant to this Indenture.
Section 303. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by its Chairman,
its President or one of its Vice Presidents, under its corporate seal or a
facsimile thereof reproduced thereon, and attested by one of its Vice
Presidents, its Treasurer, one of its Assistant Treasurers, its Secretary or one
of its Assistant Secretaries. Coupons shall be executed on behalf of the Company
by the Chairman, the President, any Vice President, the Treasurer or any
Assistant Treasurer of the Company. The signature of any of these officers on
the Securities or any Coupons appertaining thereto may be manual or facsimile.
Securities and any Coupons appertaining thereto bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Company shall, to the fullest extent permitted by law, bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities or Coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities, together with any Coupons
appertaining thereto, executed by the Company, to the Trustee for authentication
and, provided that the Board Resolution and Officers' Certificate or
supplemental indenture or indentures with respect to such Securities referred to
in Section 301 and a Company Order for the authentication and delivery of such
Securities have been delivered to the Trustee, the Trustee in accordance with
the Company Order and subject to the provisions hereof and of such Securities
shall authenticate and deliver such Securities. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities and any Coupons appertaining thereto, the Trustee
shall be entitled to receive, and (subject to Sections 315(a) through 315(d) of
the Trust Indenture Act) shall be fully protected in relying upon, an Opinion of
Counsel substantially to the following effect, which Opinion of Counsel may
contain such assumptions, qualifications and limitations as such counsel shall
deem appropriate:
24
<PAGE>
(a) the form or forms and terms of such Securities and Coupons, if
any, have in all material respects been established in conformity with
Sections 201 and 301 of this Indenture; and
(b) such Securities and Coupons, if any, when completed by
appropriate insertions (if applicable), duly executed and attested under
the Company's corporate seal by duly authorized officers of the Company,
duly authenticated by the Trustee, and duly issued and delivered against
payment of the consideration therefor, all in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, subject to bankruptcy, insolvency,
reorganization, moratorium, arrangement, fraudulent conveyance, fraudulent
transfer or other similar laws relating to or affecting creditors" rights
generally and to general equitable principles (regardless of whether
considered in a proceeding in equity or at law), including concepts of
commercial reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief.
If all the Securities of any series are not to be issued at one time, it
shall not be necessary to deliver the Company Order, Board Resolution, indenture
supplemental hereto, Officers' Certificate or Opinion of Counsel, as applicable,
at the time of issuance of each Security of such series if the applicable
documents (each with such modifications as the Company or legal counsel, as the
case may be, may deem appropriate) are delivered at or prior to the
authentication upon original issuance of the first Security of such series.
After any such first delivery, any separate request by the Company that the
Trustee authenticate Securities of such series for original issue will be deemed
to be a certification by the Company that all conditions precedent provided for
in this Indenture relating to authentication and delivery of such Securities
continue to have been complied with.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee or if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security and any Bearer Security in global form shall be dated as of
the date specified in or pursuant to this Indenture.
No Security or Coupon appertaining thereto shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose, unless there
appears on such Security a certificate of authentication substantially in the
form provided for in Section 202 or 611 executed by or on behalf of the Trustee
or by the Authenticating Agent by the manual signature of one of its authorized
officers. Such certificate upon any Security shall be conclusive evidence, and
the only evidence, that such Security has been duly authenticated and delivered
hereunder. Except as permitted by Section 306 or 307 or as may otherwise be
provided in or pursuant to this Indenture, the Trustee shall not authenticate
and deliver any Bearer Security unless all Coupons appertaining thereto then
matured have been detached and cancelled.
25
<PAGE>
Section 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may execute
and deliver to the Trustee and, upon Company Order, the Trustee shall
authenticate and deliver, in the manner provided in Section 303, temporary
Securities in lieu thereof which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized in or pursuant to this
Indenture, in bearer form with one or more Coupons or without Coupons and with
such appropriate insertions, omissions, substitutions and other variations as
the officers of the Company executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. Such temporary
Securities may be in global form.
Except in the case of temporary Securities in global form, which shall be
exchanged in accordance with the provisions thereof, if temporary Securities are
issued, the Company shall cause definitive Securities to be prepared without
unreasonable delay. After the preparation of definitive Securities of the same
series and containing terms and provisions that are identical to those of any
temporary Securities, such temporary Securities shall be exchangeable for such
definitive Securities upon surrender of such temporary Securities at an Office
or Agency for such Securities, without charge to any Holder thereof. Upon
surrender for cancellation of any one or more temporary Securities (accompanied
by any unmatured Coupons appertaining thereto), the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of authorized denominations of the same series
and containing identical terms and provisions; provided, however, that no
definitive Bearer Security, except as provided in or pursuant to this Indenture,
shall be delivered in exchange for a temporary Registered Security; and
provided, further, that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance with the conditions
set forth in or pursuant to this Indenture. Unless otherwise provided in or
pursuant to this Indenture with respect to a temporary global Security, until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
Section 305. Registration, Transfer and Exchange.
With respect to the Registered Securities of each series, if any, the
Company shall cause to be kept a register (each such register being herein
sometimes referred to as the "Security Register") at an Office or Agency for
such series in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of the Registered
Securities of such series and of transfers of the Registered Securities of such
series. Such Office or Agency shall be the "Security Registrar" for that series
of Securities. Unless otherwise specified in or pursuant to this Indenture or
the Securities, the initial Security Registrar for each series of Securities
shall be as specified in the last paragraph of Section 1002. The Company shall
have the right to remove and replace from time to time the Security Registrar
for any series of Securities; provided that no such removal or replacement shall
be effective until a successor Security Registrar with respect to such series of
Securities shall have been appointed by the Company and shall have accepted such
appointment. In the event that the Trustee shall not be or shall cease to be
Security Registrar with respect to a series of Securities, it shall have the
right to
26
<PAGE>
examine the Security Register for such series at all reasonable times. There
shall be only one Security Register for each series of Securities.
Upon surrender for registration of transfer of any Registered Security of
any series at any Office or Agency for such series, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Registered Securities of the same
series denominated as authorized in or pursuant to this Indenture, of a like
aggregate principal amount bearing a number not contemporaneously outstanding
and containing identical terms and provisions.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series containing
identical terms and provisions, in any authorized denominations, and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
any Office or Agency for such series. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive.
If provided in or pursuant to this Indenture, with respect to Securities of
any series, at the option of the Holder, Bearer Securities of such series may be
exchanged for Registered Securities of such series containing identical terms,
denominated as authorized in or pursuant to this Indenture and in the same
aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any Office or Agency for such series, with all unmatured Coupons
and all matured Coupons in default thereto appertaining. If the Holder of a
Bearer Security is unable to produce any such unmatured Coupon or Coupons or
matured Coupon or Coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
and the Trustee in an amount equal to the face amount of such missing Coupon or
Coupons, or the surrender of such missing Coupon or Coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Bearer Security shall surrender to any Paying
Agent any such missing Coupon in respect of which such a payment shall have been
made, such Holder shall be entitled to receive the amount of such payment;
provided, however, that, except as otherwise provided in Section 1002, interest
represented by Coupons shall be payable only upon presentation and surrender of
those Coupons at an Office or Agency for such series located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such Office or Agency for such series in exchange for a
Registered Security of such series and like tenor after the close of business at
such Office or Agency on (i) any Regular Record Date and before the opening of
business at such Office or Agency on the relevant Interest Payment Date, or (ii)
any Special Record Date and before the opening of business at such Office or
Agency on the related date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the Coupon relating to such Interest
Payment Date or proposed date of payment, as the case may be (or, if such Coupon
is so surrendered with such Bearer Security, such Coupon shall be returned to
the Person so surrendering the Bearer Security), and interest or Defaulted
Interest, as the case may be, shall not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such
27
<PAGE>
Bearer Security, but shall be payable only to the Holder of such Coupon when due
in accordance with the provisions of this Indenture.
If provided in or pursuant to this Indenture with respect to Securities of
any series, at the option of the Holder, Registered Securities of such series
may be exchanged for Bearer Securities upon such terms and conditions as may be
provided in or pursuant to this Indenture with respect to such series.
Whenever any Securities are surrendered for exchange as contemplated by the
immediately preceding two paragraphs, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise provided in or pursuant
to this Indenture, the global Securities of any series shall be exchangeable for
definitive certificated Securities of such series only if (i) the Depository for
such global Securities notifies the Company that it is unwilling or unable to
continue as a Depository for such global Securities or at any time the
Depository for such global Securities ceases to be a clearing agency registered
as such under the Securities Exchange Act of 1934, as amended (or any successor
thereto), if so required by applicable law or regulation, and no successor
Depository for such Securities shall have been appointed within 90 days of such
notification or of the Company becoming aware of the Depository's ceasing to be
so registered, as the case may be, (ii) the Company, in its sole discretion,
executes and delivers to the Trustee a Company Order to the effect that such
global Securities shall be so exchangeable, or (iii) an Event of Default has
occurred and is continuing with respect to such Securities.
If the beneficial owners of interests in a global Security are entitled to
exchange such interests for definitive Securities as the result of an event
described in clause (i), (ii) or (iii) of the preceding paragraph, then without
unnecessary delay but in any event not later than the earliest date on which
such interests may be so exchanged, the Company shall deliver to the Trustee
definitive Securities in such form and denominations as are required by or
pursuant to this Indenture, and of the same series, containing identical terms
and in aggregate principal amount equal to the principal amount of such global
Security, executed by the Company. On or after the earliest date on which such
interests may be so exchanged, such global Security shall be surrendered from
time to time by the Depository (or its custodian) as shall be specified in the
Company Order with respect thereto, and in accordance with instructions given to
the Trustee and the Depository, as the case may be (which instructions shall be
in writing but need not be contained in or accompanied by an Officers'
Certificate or be accompanied by an Opinion of Counsel), as shall be specified
in the Company Order with respect thereto to the Trustee, as the Company's agent
for such purpose, to be exchanged, in whole or in part, for definitive
Securities as described above without charge. The Trustee shall authenticate and
make available for delivery, in exchange for each portion of such surrendered
global Security, a like aggregate principal amount of definitive Securities of
the same series of authorized denominations and of like tenor as the portion of
such global Security to be exchanged, which (unless such Securities are not
issuable both as Bearer Securities and as Registered Securities, in which case
the definitive Securities exchanged for the global Security shall be issuable
only in the form in which the Securities are issuable, as provided in or
pursuant to this Indenture) shall be in the
28
<PAGE>
form of Bearer Securities or Registered Securities, or any combination thereof,
as shall be specified by the Depository, but subject to the satisfaction of any
certification or other requirements to the issuance of Bearer Securities;
provided, however, that no such exchanges may occur during a period beginning at
the opening of business 15 days before any selection of Securities of the same
series to be redeemed and ending on the relevant Redemption Date; and provided,
further, that (unless otherwise provided in or pursuant to this Indenture) no
Bearer Security delivered in exchange for a portion of a global Security shall
be mailed or otherwise delivered to any location in the United States. Promptly
following any such exchange in part, such global Security shall be returned by
the Trustee to such Depository (or its custodian), or such other Depository (or
its custodian) referred to above in accordance with the instructions of the
Company referred to above, and the Trustee shall endorse such global Security to
reflect the decrease in the principal amount thereof resulting from such
exchange. If a Registered Security is issued in exchange for any portion of a
global Security after the close of business at the Office or Agency for such
Security where such exchange occurs on or after (i) any Regular Record Date for
such Security and before the opening of business at such Office or Agency on the
next Interest Payment Date, or (ii) any Special Record Date for such Security
and before the opening of business at such Office or Agency on the related
proposed date for payment of interest or Defaulted Interest, as the case may be,
interest shall not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of such Registered Security, but shall
be payable on such Interest Payment Date or proposed date for payment, as the
case may be, only to the Person to whom interest in respect of such portion of
such global Security shall be payable in accordance with the provisions of this
Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company evidencing the same
debt and entitling the Holders thereof to the same benefits under this Indenture
as the Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar for such Security) be duly endorsed, or be accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar for such Security duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge and any other expenses (including
fees and expenses of the Trustee) that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 905 or 1107, upon repayment in part of any Registered
Security pursuant to Article Thirteen, or upon surrender in part of any
Registered Security for conversion or exchange into Common Stock or other
securities pursuant to its terms, in each case not involving any transfer.
Except as otherwise provided in or pursuant to this Indenture, the Company
shall not be required (i) to issue, register the transfer of or exchange any
Securities during a period beginning at the opening of business 15 days before
the day of the selection for redemption of Securities of like tenor and the same
series under Section 1103 and ending at the close of business on the day
29
<PAGE>
of such selection, or (ii) to register the transfer of or exchange any
Registered Security, or portion thereof, so selected for redemption, except in
the case of any Registered Security to be redeemed in part, the portion thereof
not to be redeemed, or (iii) to exchange any Bearer Security so selected for
redemption except, to the extent provided with respect to such Bearer Security,
that such Bearer Security may be exchanged for a Registered Security of like
tenor and the same series, provided that such Registered Security shall be
simultaneously surrendered for redemption with written instruction for payment
consistent with the provisions of this Indenture or (iv) to issue, register the
transfer of or exchange any Security which, in accordance with its terms, has
been surrendered for repayment at the option of the Holder pursuant to Article
Thirteen, except the portion, if any, of such Security not to be so repaid.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, subject to the provisions of
this Section 306, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons appertaining thereto corresponding
to the Coupons, if any, appertaining to the surrendered Security.
If there be delivered to the Company and to the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or Coupon,
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security or Coupon has been acquired by a
bona fide purchaser, the Company shall execute and, upon the Company's request
the Trustee shall authenticate and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or stolen Coupon appertains with all
appurtenant Coupons not destroyed, lost or stolen, a new Security of the same
series containing identical terms and of like principal amount and bearing a
number not contemporaneously outstanding, with Coupons corresponding to the
Coupons, if any, appertaining to such destroyed, lost or stolen Security or to
the Security to which such destroyed, lost or stolen Coupon appertains.
Notwithstanding the foregoing provisions of this Section 306, in case any
mutilated, destroyed, lost or stolen Security or Coupon has become or is about
to become due and payable, the Company in its discretion may, instead of issuing
a new Security, pay such Security or Coupon; provided, however, that payment of
principal of, any premium or interest on or any Additional Amounts with respect
to any Bearer Securities shall, except as otherwise provided in Section 1002, be
payable only at an Office or Agency for such Securities located outside the
United States and, unless otherwise provided in or pursuant to this Indenture,
any interest on Bearer Securities and any Additional Amounts with respect to
such interest shall be payable only upon presentation and surrender of the
Coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
30
<PAGE>
Every new Security, with any Coupons appertaining thereto issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security, or in
exchange for a Security to which a destroyed, lost or stolen Coupon appertains
shall constitute a separate obligation of the Company, whether or not the
destroyed, lost or stolen Security and Coupons appertaining thereto or the
destroyed, lost or stolen Coupon shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of such series and any
Coupons, if any, duly issued hereunder.
The provisions of this Section, as amended or supplemented pursuant to this
Indenture with respect to particular Securities or generally, shall (to the
extent lawful) be exclusive and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or Coupons.
Section 307. Payment of Interest and Certain Additional Amounts; Rights to
Interest and Certain Additional Amounts Preserved.
Unless otherwise provided in or pursuant to this Indenture, any interest on
and any Additional Amounts with respect to any Registered Security which shall
be payable, and are punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name such Security (or one or
more Predecessor Securities) is registered as of the close of business on the
Regular Record Date for such interest. Unless otherwise provided in or pursuant
to this Indenture, in case a Bearer Security is surrendered in exchange for a
Registered Security after the close of business at an Office or Agency for such
Security on any Regular Record Date therefor and before the opening of business
at such Office or Agency on the next succeeding Interest Payment Date therefor,
such Bearer Security shall be surrendered without the Coupon relating to such
Interest Payment Date and interest shall not be payable on such Interest Payment
Date in respect of the Registered Security issued in exchange for such Bearer
Security, but shall be payable only to the Holder of such Coupon when due in
accordance with the provisions of this Indenture.
Unless otherwise provided in or pursuant to this Indenture, any interest on
and any Additional Amounts with respect to any Registered Security which shall
be payable, but shall not be punctually paid or duly provided for, on any
Interest Payment Date for such Registered Security (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder thereof on the
relevant Regular Record Date by virtue of having been such Holder; and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Person in whose name such Registered Security (or a Predecessor
Security thereof) shall be registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on such
Registered Security and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money equal to
the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit on or prior to the date of the
31
<PAGE>
proposed payment, such money when so deposited to be held in trust for the
benefit of the Person entitled to such Defaulted Interest as in this Clause
provided. Thereupon, the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 days and
not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class postage prepaid,
to the Holder of such Registered Security (or a Predecessor Security
thereof) at his address as it appears in the Security Register not less
than 10 days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company cause a similar
notice to be published at least once in an Authorized Newspaper of general
circulation in the Borough of Manhattan, The City of New York, but such
publication shall not be a condition precedent to the establishment of such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Person in whose
name such Registered Security (or a Predecessor Security thereof) shall be
registered at the close of business on such Special Record Date and shall
no longer be payable pursuant to the following clause (2). In case a Bearer
Security is surrendered at the Office or Agency for such Security in
exchange for a Registered Security after the close of business at such
Office or Agency on any Special Record Date and before the opening of
business at such Office or Agency on the related proposed date for payment
of Defaulted Interest, such Bearer Security shall be surrendered without
the Coupon relating to such Defaulted Interest and Defaulted Interest shall
not be payable on such proposed date of payment in respect of the
Registered Security issued in exchange for such Bearer Security, but shall
be payable only to the Holder of such Coupon when due in accordance with
the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which such Security may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this Clause,
such payment shall be deemed practicable by the Trustee.
Unless otherwise provided in or pursuant to this Indenture or the
Securities of any particular series, at the option of the Company, interest on
Registered Securities that bear interest may be paid by mailing a check to the
address of the Person entitled thereto as such address shall appear in the
Security Register or by transfer to an account maintained by the payee with a
bank located in the United States.
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
32
<PAGE>
Section 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered in the
Security Register as the owner of such Registered Security for the purpose of
receiving payment of principal of, any premium and (subject to Sections 305 and
307) interest on and any Additional Amounts with respect to such Registered
Security and for all other purposes whatsoever, whether or not any payment with
respect to such Registered Security shall be overdue, and neither the Company,
the Trustee or any agent of the Company or the Trustee shall be affected by
notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the bearer of any Bearer Security or the bearer of any Coupon as the
absolute owner of such Security or Coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not any payment with respect to such Security or Coupon shall be overdue, and
neither the Company, the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
No holder of any beneficial interest in any global Security held on its
behalf by a Depository shall have any rights under this Indenture with respect
to such global Security, and such Depository may be treated by the Company, the
Trustee, and any agent of the Company or the Trustee as the owner of such global
Security for all purposes whatsoever. None of the Company, the Trustee, any
Paying Agent or the Security Registrar will have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests of a global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
Notwithstanding the foregoing, nothing herein shall prevent the Company,
the Trustee, any Paying Agent or the Security Registrar from giving effect to
any written certification, proxy or other authorization furnished by the
applicable Depository, as a Holder, with respect to a global Security or impair,
as between such Depository and the owners of beneficial interests in such global
Security, the operation of customary practices governing the exercise of the
rights of such Depository (or its nominee) as the Holder of such global
Security.
Section 309. Cancellation.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer, exchange or conversion or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee, and any such Securities and Coupons, as well as
Securities and Coupons surrendered directly to the Trustee for any such purpose,
shall be cancelled promptly by the Trustee. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be cancelled promptly by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by or pursuant to this Indenture. All cancelled Securities and Coupons held by
the
33
<PAGE>
Trustee shall be destroyed by the Trustee, unless by a Company Order the Company
directs their return to it.
Section 310. Computation of Interest.
Except as otherwise provided in or pursuant to this Indenture or in the
Securities of any series, interest on the Securities shall be computed on the
basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge of Indenture
Section 401. Satisfaction and Discharge.
Upon the direction of the Company by a Company Order, this Indenture shall
cease to be of further effect with respect to any series of Securities specified
in such Company Order and any Coupons appertaining thereto (subject to survival
of certain provisions as provided in the last paragraph of this Section 401),
and the Trustee, on receipt of a Company Order, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture as to such series, when
(1) either
(a) all Securities of such series theretofore authenticated and
delivered and all Coupons appertaining thereto (other than (i) Coupons
appertaining to Bearer Securities of such series surrendered in exchange
for Registered Securities of such series and maturing after such exchange
whose surrender is not required or has been waived as provided in Section
305, (ii) Securities and Coupons of such series which have been destroyed,
lost or stolen and which have been replaced or paid as provided in Section
306, (iii) Coupons appertaining to Securities of such series called for
redemption and maturing after the relevant Redemption Date whose surrender
has been waived as provided in Section 1106, and (iv) Securities and
Coupons of such series for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as provided
in Section 1003) have been delivered to the Trustee for cancellation; or
(b) all Securities of such series and, in the case of (i) or (ii)
below, if applicable, any Coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
34
<PAGE>
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for such
purpose, money in the Currency in which such Securities are payable in an
amount sufficient to pay and discharge the entire indebtedness on such
Securities and any Coupons appertaining thereto not theretofore delivered
to the Trustee for cancellation, including the principal of, any premium
and interest on, and, to the extent that the Securities of such series
provide for the payment of Additional Amounts thereon and the amount of any
such Additional Amounts which are or will be payable with respect to the
Securities of such series is at the time of deposit reasonably determinable
by the Company (in the exercise by the Company of its sole and absolute
discretion), any Additional Amounts with respect to, such Securities and
any Coupons appertaining thereto, to the date of such deposit (in the case
of Securities which have become due and payable) or to the Maturity
thereof, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to the Outstanding Securities of such
series and any Coupons appertaining thereto; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of such series as to which it is Trustee and if the other conditions
thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Company to the
Trustee under Section 606 and, if money shall have been deposited with the
Trustee pursuant to subclause (b) of clause (1) of this Section, the obligations
of the Company and the Trustee with respect to the Securities of such series
under Sections 305, 306, 403, 404, 1002 and 1003, with respect to the payment of
Additional Amounts, if any, with respect to such Securities as contemplated by
Section 1004 (but only to the extent that the Additional Amounts payable with
respect to such Securities exceed the amount deposited in respect of such
Additional Amounts pursuant to Section 401(1)(b)), with respect to any rights of
Holders of the Securities of such series (unless otherwise provided pursuant to
Section 301 with respect to the Securities of such series) to require the
Company to repurchase or repay such Securities at the option of the Holders
pursuant to Article Thirteen hereof, and with respect to any rights of Holders
of the Securities of such series (unless otherwise provided pursuant to Section
301 with respect to the Securities of such series) to convert or exchange such
Securities into Common Stock or other securities, shall survive.
35
<PAGE>
Section 402. Defeasance and Covenant Defeasance.
(1) Unless, pursuant to Section 301, either or both of (i) defeasance of
the Securities of or within a series under clause (2) of this Section 402 or
(ii) covenant defeasance of the Securities of or within a series under clause
(3) of this Section 402 shall not be applicable with respect to the Securities
of such series, then such provisions, together with the other provisions of this
Section 402 (with such modifications thereto as may be specified pursuant to
Section 301 with respect to any Securities), shall be applicable to such
Securities and any Coupons appertaining thereto, and the Company may at its
option by Board Resolution, at any time, with respect to the Securities of or
within such series and any Coupons appertaining thereto, elect to have Section
402(2) or Section 402(3) be applied to such Outstanding Securities and any
Coupons appertaining thereto upon compliance with the conditions set forth below
in this Section 402.
(2) Upon the Company's exercise of the above option applicable to this
Section 402(2) with respect to any Securities of or within a series, the Company
shall be deemed to have been discharged from its obligations with respect to
such Outstanding Securities and any Coupons appertaining thereto on the date the
conditions set forth in clause (4) of this Section 402 are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by such Outstanding Securities and any Coupons appertaining thereto,
which shall thereafter be deemed to be "Outstanding" only for the purposes of
clause (5) of this Section 402 and the other Sections of this Indenture referred
to in clauses (i) and (ii) of this paragraph, and to have satisfied all of its
other obligations under such Securities and any Coupons appertaining thereto and
this Indenture insofar as such Securities and any Coupons appertaining thereto
are concerned (and the Trustee, at the expense of the Company , shall execute
proper instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (i) the rights of
Holders of such Outstanding Securities and any Coupons appertaining thereto to
receive, solely from the trust fund described in clause (4)(a) of this Section
402 and as more fully set forth in this Section, payments in respect of the
principal of (and premium, if any) and interest, if any, on, and Additional
Amounts, if any, with respect to, such Securities and any Coupons appertaining
thereto when such payments are due, (ii) the obligations of the Company and the
Trustee with respect to such Securities under Sections 305, 306, 1002 and 1003,
with respect to the payment of Additional Amounts, if any, with respect to such
Securities as contemplated by Section 1004 (but only to the extent that the
Additional Amounts payable with respect to such Securities exceed the amount
deposited in respect of such Additional Amounts pursuant to clause (4)(a) of
this Section 401), with respect to any rights of Holders of such Securities
(unless otherwise provided pursuant to Section 301 with respect to the
Securities of such series) to require the Company to repurchase or repay such
Securities at the option of the Holders pursuant to Article Thirteen hereof, and
with respect to any rights of Holders of such Securities (unless otherwise
provided pursuant to Section 301 with respect to the Securities of such series)
to convert or exchange such Securities into Common Stock or other securities,
(iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder
and (iv) this Section 402 and Sections 403 and 404. The Company may exercise its
option under this Section 402(2) notwithstanding the prior exercise of its
option under Section 402(3) with respect to such Securities and any Coupons
appertaining thereto.
36
<PAGE>
(3) Upon the Company"s exercise of the above option applicable to this
Section 402(3) with respect to any Securities of or within a series, the Company
shall be released from its obligations under Sections 1005 and 1006 and, to the
extent specified pursuant to Section 301, any other covenant applicable to such
Securities with respect to such Securities and any Coupons appertaining thereto
and the provisions set forth in Section 501(5) shall cease to be applicable to
such Securities on and after the date the conditions set forth in clause (4) of
this Section 402 are satisfied (hereinafter, "covenant defeasance"), and such
Securities and any Coupons appertaining thereto shall thereafter be deemed to be
not "Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with any such covenant or with respect to any Event of Default set
forth in Section 501(5), but shall continue to be deemed "Outstanding" for all
other purposes hereunder. For this purpose, such covenant defeasance means that
(i) with respect to such Outstanding Securities and any Coupons appertaining
thereto, the Company may omit to comply with, and shall have no liability in
respect of, any term, condition or limitation set forth in any such Section or
any such other covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or such other covenant or by
reason of reference in any such Section or such other covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a default or an Event of Default under Section 501(4) or 501(8) or
otherwise, as the case may be, and (ii) the occurrence of any event or condition
specified in Section 501(5) shall not constitute an Event of Default with
respect to such Outstanding Securities, but, except as specified above, the
remainder of this Indenture and such Securities and Coupons appertaining thereto
shall be unaffected thereby.
(4) The following shall be the conditions to application of clause (2) or
(3) of this Section 402 to any Outstanding Securities of or within a series and
any Coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 607 who shall agree to comply with the provisions of this
Section 402 applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities and any
Coupons appertaining thereto, (1) an amount in Dollars or in such Foreign
Currency in which such Securities and any Coupons appertaining thereto are
then specified as payable at Stated Maturity or, if such defeasance or
covenant defeasance is to be effected in compliance with subsection (f)
below, on the relevant Redemption Date, as the case may be, or (2)
Government Obligations applicable to such Securities and Coupons
appertaining thereto (determined on the basis of the Currency in which such
Securities and Coupons appertaining thereto are then specified as payable
at Stated Maturity or, if such defeasance or covenant defeasance is to be
effected in compliance with subsection (f) below, on the relevant
Redemption Date, as the case may be) which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment of
principal of (and premium, if any) and interest, if any, on such Securities
and any Coupons appertaining thereto, money in an amount, or (3) a
combination thereof, in any case, in an amount, sufficient, without
consideration of any reinvestment of such principal and interest, in the
opinion of a nationally recognized firm of independent public accountants
37
<PAGE>
expressed in a written certification thereof delivered to the Trustee, to
pay and discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, (y) the principal of (and
premium, if any) and interest, if any, on, and, to the extent that such
Securities provide for the payment of Additional Amounts thereon and the
amount of any such Additional Amounts which are or will be payable with
respect to the Securities of such series is at the time of deposit
reasonably determinable by the Company (in the exercise by the Company of
its sole and absolute discretion), any Additional Amounts with respect to,
such Outstanding Securities and any Coupons appertaining thereto on the
Stated Maturity of such principal or installment of principal or interest
or the applicable Redemption Date, as the case may be, and (z) any
mandatory sinking fund payments or analogous payments applicable to such
Outstanding Securities and any Coupons appertaining thereto on the day on
which such payments are due and payable in accordance with the terms of
this Indenture and of such Securities and any Coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument relating to indebtedness for
borrowed money to which the Company is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default with respect to such Securities
and any Coupons appertaining thereto shall have occurred and be continuing
on the date of such deposit, and, solely in the case of defeasance under
Section 402(2), no Event of Default with respect to such Securities and any
Coupons appertaining thereto under clause (6) or (7) of Section 501 or
event which with notice or lapse of time or both would become an Event of
Default with respect to such Securities and any Coupons appertaining
thereto under clause (6) or (7) of Section 501 shall have occurred and be
continuing at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition to defeasance
under Section 402(2) shall not be deemed satisfied until the expiration of
such period).
(d) The Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Outstanding Securities and
any Coupons appertaining thereto will not recognize income, gain or loss
for Federal income tax purposes as a result of such defeasance or covenant
defeasance, as the case may be, and will be subject to Federal income tax
on the same amounts, in the same manner and at the same times as would have
been the case if such defeasance or covenant defeasance, as the case may
be, had not occurred.
(e) The Company shall have delivered to the Trustee an Officers"
Certificate stating that all conditions precedent to the defeasance or
covenant defeasance under clause (2) or (3) of this Section 402 (as the
case may be) have been complied with.
(f) If the monies or Government Obligations or combination thereof,
as the case may be, deposited under clause (a) above are sufficient to pay
the principal of, and premium, if any, and interest, if any, on and, to the
extent applicable, Additional
38
<PAGE>
Amounts, if any, with respect to, such Securities provided such Securities
are redeemed on a particular Redemption Date, the Company shall have given
the Trustee irrevocable instructions to redeem such Securities on such date
and to provide notice of such redemption to Holders as provided in or
pursuant to this Indenture.
(g) Notwithstanding any other provisions of this Section 402(4), such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 301.
(5) Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations (or other property as may be provided pursuant
to Section 301) (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee -- collectively for purposes of this Section 402(5) and
Section 403, the "Trustee") pursuant to clause (4)(a) of Section 402 in respect
of any Outstanding Securities of any series and any Coupons appertaining thereto
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and any Coupons appertaining thereto and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities and any Coupons appertaining
thereto of all sums due and to become due thereon in respect of principal (and
premium, if any) and interest and Additional Amounts, if any, but such money
need not be segregated from other funds except to the extent required by law.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, if, after a deposit referred to in Section 402(4)(a) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 301 or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 402(4)(a) has been made in respect of such Security, or (b)
a Conversion Event occurs in respect of the Foreign Currency in which the
deposit pursuant to Section 402(4)(a) has been made, the indebtedness
represented by such Security and any Coupons appertaining thereto shall be
deemed to have been, and will be, fully discharged and satisfied through the
payment of the principal of (and premium, if any), and interest, if any, on, and
Additional Amounts, if any, with respect to, such Security as the same becomes
due out of the proceeds yielded by converting (from time to time as specified
below in the case of any such election) the amount or other property deposited
in respect of such Security into the Currency in which such Security becomes
payable as a result of such election or Conversion Event based on (x) in the
case of payments made pursuant to clause (a) above, the applicable market
exchange rate for such Currency in effect on the second Business Day prior to
each payment date, or (y) with respect to a Conversion Event, the applicable
market exchange rate for such Foreign Currency in effect (as nearly as feasible)
at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge, imposed on or assessed against the Government Obligations
deposited pursuant to this Section 402 or the principal or interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of such Outstanding Securities and any Coupons
appertaining thereto.
39
<PAGE>
Anything in this Section 402 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or Government Obligations (or other property and any proceeds therefrom)
held by it as provided in clause (4)(a) of this Section 402 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in accordance with
this Section 402.
Section 403. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
and Government Obligations deposited with the Trustee pursuant to Section 401 or
402 shall be held in trust and applied by it, in accordance with the provisions
of the Securities, the Coupons and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal, premium, interest and Additional Amounts for whose payment such
money has or Government Obligations have been deposited with or received by the
Trustee; but such money and Government Obligations need not be segregated from
other funds except to the extent required by law.
Section 404. Effect on Subordination Provisions.
Unless otherwise expressly provided pursuant to Section 301 with respect to
the Subordinated Securities of any series, the provisions of Article Sixteen
hereof, insofar as they pertain to the Subordinated Securities of such series,
and the Subordination Provisions established pursuant to Section 301(24) with
respect to such series are hereby expressly made subject to the provisions for
satisfaction and discharge set forth in Section 401 hereof and the provisions
for defeasance and covenant defeasance set forth in Section 402 hereof and,
anything herein to the contrary notwithstanding, upon the effectiveness of such
satisfaction and discharge pursuant to Section 401 with respect to the
Securities of such series or any such defeasance or covenant defeasance pursuant
to Section 402 with respect to the Securities of or within such series, all of
the Securities of such series (in the case of satisfaction and discharge
pursuant to Section 401) or the Securities of such series as to which defeasance
or covenant defeasance, as the case may be, shall have become effective shall
thereupon cease to be so subordinated and shall no longer be subject to the
provisions of Article Sixteen or the Subordination Provisions established
pursuant to Section 301(24) with respect to such Securities and, without
limitation to the foregoing, all moneys, Government Obligations and other
securities or property deposited with the Trustee (or other qualifying trustee)
in trust in connection with such satisfaction and discharge, defeasance or
covenant defeasance, as the case may be, and all proceeds therefrom may be
applied to pay the principal of, premium, if any, and interest, if any, on, and
Additional Amounts, if any, with respect to such Securities as and when the same
shall become due and payable notwithstanding the provisions of Article Sixteen
or such Subordination Provisions.
40
<PAGE>
ARTICLE FIVE
Remedies
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body) unless
such event is specifically deleted or modified in or pursuant to the
supplemental indenture, Board Resolution or Officers" Certificate establishing
the terms of such series pursuant to this Indenture:
(1) default in the payment of any interest on, or any Additional Amounts
payable in respect of any interest on, any Security of such series when such
interest or such Additional Amounts, as the case may be, become due and payable,
and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of or premium, if any, on, or
any Additional Amounts payable in respect of the principal of or premium, if
any, on, any Security of such series when due upon Maturity (whether at Stated
Maturity, upon redemption or otherwise); or
(3) default in the deposit of any sinking fund payment when and as due by
the terms of a Security of such series; or
(4) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture (other than a covenant or warranty for which the
consequences of breach or nonperformance are addressed elsewhere in this Section
501 or a covenant or warranty which has expressly been included in this
Indenture, whether or not by means of a supplemental indenture, solely for the
benefit of Securities of a series other than such series) or any Security of
such series, and continuance of such default or breach for a period of 90 days
after there has been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities of such series a
written notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
(5) acceleration of the maturity of any single outstanding issue of
Indebtedness of the Company with an outstanding aggregate principal amount in
excess of $35,000,000, whether such Indebtedness now exists or shall hereafter
be created (including an acceleration under this Indenture with respect to
Securities of any series other than the series for which the Event of Default
determination is being made under this Section 501(5)), as a result of an event
of default thereunder, which acceleration continues and is not annulled, or
which Indebtedness is not discharged, within 30 days or such longer period of
time during which the Company is contesting in good faith such acceleration, as
evidenced by the delivery to the Trustee on or prior to such 30th day after such
acceleration of an Officers" Certificate to such effect;
41
<PAGE>
(6) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order unstayed
and in effect for a period of 60 consecutive days; or
(7) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or order
for relief in respect of the Company in an involuntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State law, or
the consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or of any substantial part of
its property, or the making by it of an assignment for the benefit of creditors,
or the admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company in furtherance
of any such action; or
(8) any other Event of Default provided in or pursuant to this Indenture
with respect to Securities of such series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Securities of such series
may declare the principal of all the Securities of such series, or such lesser
amount as may be provided for in the Securities of such series, and accrued and
unpaid interest, if any, thereon to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by the Holders), and upon
any such declaration such principal or such lesser amount, as the case may be,
and such accrued and unpaid interest shall become immediately due and payable.
At any time after Securities of any series have been accelerated and before
a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of not less than a
majority in principal amount of the Outstanding Securities of such series, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum of money
sufficient to pay
42
<PAGE>
(a) all overdue installments of any interest on any Securities of
such series and any Coupons appertaining thereto which have become due
otherwise then by such declaration of acceleration and any Additional
Amounts with respect thereto,
(b) the principal of and any premium on any Securities of such series
which have become due otherwise than by such declaration of acceleration
and any Additional Amounts with respect thereto and, to the extent
permitted by applicable law, interest thereon at the rate or rates borne by
or provided for in such Securities,
(c) to the extent permitted by applicable law, interest upon
installments of any interest, if any, which have become due otherwise then
by such declaration of acceleration and any Additional Amounts with respect
thereto at the rate or rates borne by or provided for in such Securities,
and
(d) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and all other amounts due the Trustee under
Section 606; and
(2) all Events of Default with respect to Securities of such series, other
than the non-payment of the principal of, any premium and interest on, and any
Additional Amounts with respect to Securities of such series which shall have
become due solely by such declaration of acceleration, shall have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of interest on or
any Additional Amounts with respect to any Security or any Coupon appertaining
thereto when such interest or Additional Amounts shall have become due and
payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of or any premium on
any Security at its Maturity,
the Company shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities and any Coupons appertaining thereto,
the whole amount of money then due and payable with respect to such Securities
and any Coupons appertaining thereto, with interest upon the overdue principal,
any premium and, to the extent permitted by applicable law, upon any overdue
installments of interest and Additional Amounts at the rate or rates borne by or
provided for in such Securities, and, in addition thereto, such further amount
of money as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel and all other amounts due to the Trustee
under Section 606.
43
<PAGE>
If the Company fails to pay the money it is required to pay the Trustee
pursuant to the preceding paragraph forthwith upon the demand of the Trustee,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the money so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and any Coupons
appertaining thereto and collect the monies adjudged or decreed to be payable in
the manner provided by law out of the property of the Company or any other
obligor upon such Securities and any Coupons appertaining thereto, wherever
situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series and any
Coupons appertaining thereto by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or such Securities or in aid of the exercise of any power granted
herein or therein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
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 on
the Company for the payment of any overdue principal, premium, interest or
Additional Amounts) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(1) to file and prove a claim for the whole amount, or such lesser
amount as may be provided for in the Securities of such series, of the
principal and any premium, interest and Additional Amounts owing and unpaid
in respect of the Securities and any Coupons appertaining thereto 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
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents or counsel) and of the Holders of Securities or any
Coupons allowed in such judicial proceeding, and
(2) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities or any Coupons to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Securities or any Coupons, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 606.
44
<PAGE>
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or any Coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or Coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or any Coupon in any such proceeding.
Section 505. Trustee May Enforce Claims without Possession of Securities
or Coupons.
All rights of action and claims under this Indenture or any of the
Securities or Coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or Coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery or judgment, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, shall be for the ratable benefit of each and every Holder of a
Security or Coupon in respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article with respect to
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
money on account of principal, or any premium, interest or Additional Amounts,
upon presentation of such Securities or the Coupons, if any, appertaining
thereto, or both, as the case may be, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: If the Securities of such series are Subordinated Securities,
to the payment of amounts then due and unpaid to the holders of Senior
Indebtedness with respect to such series, to the extent required pursuant
to the Subordination Provisions established with respect to the Securities
of such series pursuant to Section 301(24);
THIRD: To the payment of the amounts then due and unpaid upon the
Securities and any Coupons for principal and any premium, interest and
Additional Amounts in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any
kind, according to the aggregate amounts due and payable on such Securities
and Coupons for principal and any premium, interest and Additional Amounts,
respectively;
FOURTH: The balance, if any, to the Person or Persons entitled
thereto.
Section 507. Limitations on Suits.
No Holder of any Security of any series or any Coupons appertaining
thereto shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
45
<PAGE>
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of such
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of such series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture or any Security to affect, disturb or prejudice the rights of
any other such Holders or Holders of Securities of any other series, or to
obtain or to seek to obtain priority or preference over any other Holders or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all such Holders.
Section 508. Unconditional Right of Holders to Receive Principal and any
Premium, Interest and Additional Amounts.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or Coupon shall have the right, which is absolute and unconditional, to
receive payment of the principal of, any premium, if any, and (subject to
Sections 305 and 307) interest, if any, on, and any Additional Amounts with
respect to such Security or such Coupon, as the case may be, on the respective
Stated Maturity or Maturities therefor specified in such Security or Coupon (or,
in the case of redemption, on the Redemption Date or, in the case of repayment
pursuant to Article Thirteen hereof at the option of such Holder if provided in
or pursuant to this Indenture, on the date such repayment is due), in each case
as the same may be extended, if applicable, pursuant to the terms of such
Security or Coupon, and to institute suit for the enforcement of any such
payment, and such right shall not be impaired without the consent of such
Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or a Coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and each such Holder shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and each such Holder shall continue as though no such proceeding had
been instituted.
46
<PAGE>
Section 510. Rights and Remedies Cumulative.
To the extent permitted by applicable law and except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities or Coupons in the last paragraph of Section 306, no right or
remedy herein conferred upon or reserved to the Trustee or to each and every
Holder of a Security or a Coupon is intended to be exclusive of any other right
or remedy, and every right and remedy, to the extent permitted by law, shall 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, to the
extent permitted by law, prevent the concurrent assertion or employment of any
other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
Coupon to exercise any right or remedy accruing upon any Event of Default shall,
to the extent permitted by applicable law, impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to any
Holder of a Security or a Coupon may, to the extent permitted by applicable law,
be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by such Holder, as the case may be.
Section 512. Control by Holders of Securities.
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Securities of
such series and any Coupons appertaining thereto, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture or with the Securities of any series,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the rights of the
other Holders of Securities of such series not joining in such action.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series on behalf of the Holders of all the
Securities of such series and any Coupons appertaining thereto may waive any
past default hereunder with respect to such series and its consequences, except
a default
(1) in the payment of the principal of, any premium or interest on,
or any Additional Amounts with respect to, any Security of such series or
any Coupons appertaining thereto, or
47
<PAGE>
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
Section 514. Waiver of Usury, Stay or Extension Laws.
The Company covenants that (to the extent that it may lawfully do so) it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company expressly waives (to the
extent that it may lawfully do so) all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
Section 515. Undertaking for Costs
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of any
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 515 shall not apply to any suit instituted by the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of Outstanding Securities of any series, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest, if any, on or Additional Amounts,
if any, with respect to any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date, and, in the case of repayment at the option of the
Holder pursuant to Article Thirteen hereof, on or after the date for repayment)
or for the enforcement of the right, if any, to convert or exchange any Security
into Common Stock or other securities in accordance with its terms.
48
<PAGE>
ARTICLE SIX
The Trustee
Section 601. Certain Rights of Trustee.
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or a Company Order (in each
case, other than delivery of any Security, together with any Coupons
appertaining thereto, to the Trustee for authentication and delivery
pursuant to Section 303 which shall be sufficiently evidenced as provided
therein) and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence shall be herein specifically prescribed) may, in the absence
of bad faith on its part, rely upon an Officers" Certificate;
(4) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by or pursuant to this Indenture at the
request or direction of any of the Holders of Securities of any series or
any Coupons appertaining thereto pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, coupon or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine,
during business hours and upon reasonable notice, the books, records and
premises of the Company, personally or by agent or attorney; and
49
<PAGE>
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
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 as Trustee hereunder or in the
exercise of any of its rights or powers if there is reasonable ground for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
Section 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect
to the Securities of any series, the Trustee shall transmit by mail to all
Holders of Securities of such series entitled to receive reports pursuant to
Section 703(3), notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of (or premium, if any),
or interest, if any, on, or Additional Amounts or any sinking fund installment
with respect to, any Security of 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 and/or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
best interest of the Holders of Securities and Coupons of such series; and
provided, further, that in the case of any default of the character specified in
Section 501(4) or 501(8) with respect to Securities of such series, no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to Securities of such series.
Section 603. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee"s
certificate of authentication, and in any Coupons shall be taken as the
statements of the Company and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or the Coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by
the Company of the Securities or the proceeds thereof.
Section 604. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other Person that may be an agent of the Trustee or the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons and, subject to Sections
50
<PAGE>
310(b) and 311 of the Trust Indenture Act, may otherwise deal with the Company
with the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other Person.
Section 605. Money Held in Trust.
Except as provided in Section 403 and Section 1003, money held by the
Trustee in trust hereunder need not be segregated from other funds except to the
extent required by law and shall be held uninvested. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
Section 606. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by the Trustee hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to the Trustee"s negligence
or bad faith; and
(3) to indemnify the Trustee and its agents for, and to hold them
harmless against, any loss, liability or reasonable expense incurred
without negligence or bad faith on their part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the reasonable costs and expenses of defending
themselves against any claim or liability in connection with the exercise
or performance of any of their powers or duties hereunder, except to the
extent that any such loss, liability or expense was due to the Trustee"s
negligence or bad faith.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities of any
series upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of, or premium or
interest on or any Additional Amounts with respect to Securities or any Coupons
appertaining thereto.
Any compensation or expense incurred by the Trustee after a default
specified by Section 501(6) or 501(7) is intended to constitute an expense of
administration under any then applicable bankruptcy or insolvency law. "Trustee"
for purposes of this Section 606 shall include any predecessor Trustee but the
negligence or bad faith of any Trustee shall not affect the rights of any other
Trustee under this Section 606. The provisions of this Section 606 shall survive
the termination of this Indenture.
51
<PAGE>
Section 607. Corporate Trustee Required; Eligibility.
(1) There shall at all times be a Trustee hereunder that is a Corporation,
organized and doing business under the laws of the United States of America, any
state thereof or the District of Columbia, eligible under Section 310(a)(1) of
the Trust Indenture Act to act as trustee under an indenture qualified under the
Trust Indenture Act and that has a combined capital and surplus (computed in
accordance with Section 310(a)(2) of the Trust Indenture Act) of at least
$50,000,000 subject to supervision or examination by Federal or state authority.
If at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
(2) The following indentures shall be considered specifically described
herein for purposes of clause (i) of the proviso contained in Section 310(b)(1)
of the Trust Indenture Act: (a) this Indenture with respect to series of
Securities that rank equally in right of payment, (b) the Indenture dated as of
August 1, 1989 between the Company and Bank One, Columbus, NA, as successor
trustee, with respect to any series of debt securities thereunder that rank
equally in right of payment to any series of Securities, and (c) the Indenture
dated as of June 11, 1997 between the Company and The First National Bank of
Chicago, as trustee, with respect to any series of debt securities thereunder
that rank equally in right of payment to any series of Securities.
Section 608. Resignation and Removal; Appointment of Successor.
(1) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee pursuant to Section 609.
(2) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 609 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to such
series.
(3) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and the Company.
(4) If at any time:
(a) the Trustee shall fail to comply with the obligations imposed
upon it under Section 310(b) of the Trust Indenture Act with respect to
Securities of any series after written request therefor by the Company or
any Holder of a Security of such series who has been a bona fide Holder of
a Security of such series for at least six months, or
(b) the Trustee shall cease to be eligible under Section 607 and
shall fail to resign after written request therefor by the Company or any
Holder of a Security of such series who has been a bona fide Holder of a
Security of such series for at least six months, or
52
<PAGE>
(c) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by or pursuant to a Board Resolution,
may remove the Trustee with respect to all Securities or the Securities of such
series, or (ii) subject to Section 315(e) of the Trust Indenture Act, any Holder
of a Security who has been a bona fide Holder of a Security of such series for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities of such series and the appointment of a successor
Trustee or Trustees.
(5) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by or pursuant to a
Company Request, Company Order or Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable requirements of Section
609. If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 609, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders of Securities and accepted appointment in the manner required by
Section 609, any Holder of a Security who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(6) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Registered Securities, if any, of such series as their names and
addresses appear in the Security Register and, if Securities of such series are
issued as Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each Place of Payment located outside the United States.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
Section 609. Acceptance of Appointment by Successor.
(1) Upon the appointment hereunder of any successor Trustee with respect
to all Securities, such successor Trustee so appointed shall execute,
acknowledge and deliver to the
53
<PAGE>
Company and the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
hereunder of the retiring Trustee; but, on the request of the Company or such
successor Trustee, such retiring Trustee, upon payment of its charges, shall
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and, subject to Section 1003,
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder, subject nevertheless to its
claim, if any, provided for in Section 606.
(2) Upon the appointment hereunder of any successor Trustee with respect
to the Securities of one or more (but not all) series, the Company, the retiring
Trustee and such successor Trustee shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, such successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust, that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee and that no Trustee shall be responsible
for any notice given to, or received by, or any act or failure to act on the
part of any other Trustee hereunder, and, upon the execution and delivery of
such supplemental indenture, the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein, such retiring Trustee
shall have no further responsibility for the exercise of rights and powers or
for the performance of the duties and obligations vested in the Trustee under
this Indenture with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates other than as hereinafter
expressly set forth, and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates; but, on
request of the Company or such successor Trustee, such retiring Trustee, subject
to Section 1003, shall duly assign, transfer and deliver to such successor
Trustee, to the extent contemplated by such supplemental indenture, the property
and money held by such retiring Trustee hereunder with respect to the Securities
of that or those series to which the appointment of such successor Trustee
relates, subject to its claim, if any, provided for in Section 606.
(3) Upon request of any Person appointed hereunder as a successor Trustee,
the Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (1) or (2) of this Section, as the case may be.
54
<PAGE>
(4) No Person shall accept its appointment hereunder as a successor
Trustee unless at the time of such acceptance such successor Person shall be
qualified and eligible under this Article.
Section 610. Merger, Conversion, Consolidation or Succession to Business.
Any Corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any Corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such Corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Securities shall have been
authenticated but not delivered by the Trustee then in office, any such
successor to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities. In case any
Securities shall not have been authenticated by such predecessor Trustee, any
such successor Trustee may authenticate and deliver such Securities, in either
its own name or that of its predecessor Trustee, with the full force and effect
which this Indenture provides for the certificate of authentication of the
Trustee.
Section 611. Appointment of Authenticating Agent.
The Trustee may, with the prior written consent of the Company, appoint one
or more Authenticating Agents acceptable to the Company with respect to one or
more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of that or those series issued upon original
issue, exchange, registration of transfer, partial redemption, partial
repayment, partial conversion or exchange for Common Stock or other securities,
or pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee"s certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and, except as
provided in or pursuant to this Indenture, shall at all times be a Corporation
that would be permitted by the Trust Indenture Act to act as trustee under an
indenture qualified under the Trust Indenture Act, is authorized under
applicable law and by its charter to act as an Authenticating Agent and has a
combined capital and surplus (computed in accordance with Section 310(a)(2) of
the Trust Indenture Act) of at least $50,000,000. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect specified in this Section.
Any Corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any Corporation
55
<PAGE>
succeeding to all or substantially all of the corporate agency or corporate
trust business of an Authenticating Agent, shall be the successor of such
Authenticating Agent hereunder, provided such Corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee, with the prior written consent of the
Company, may appoint a successor Authenticating Agent which shall be acceptable
to the Company. Any successor Authenticating Agent, upon acceptance of its
appointment hereunder, shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Company agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section. If the Trustee
makes such payments, it shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 606.
The provisions of Sections 308, 603 and 604 shall be applicable to each
Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or more series
of Securities pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to or in lieu of the Trustee"s certificate of
authentication, an alternate certificate of authentication in substantially the
following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
Bank One Trust Company, National Association,
As Trustee
By________________________________________________
As Authenticating Agent
By________________________________________________
Authorized Signatory
If all of the Securities of any series may not be originally issued at one
time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance
56
<PAGE>
located in a Place of Payment where the Company wishes to have Securities of
such series authenticated upon original issuance, the Trustee, if so requested
in writing (which writing need not be accompanied by or contained in an
Officers" Certificate by the Company), shall appoint in accordance with this
Section an Authenticating Agent having an office in a Place of Payment
designated by the Company with respect to such series of Securities.
ARTICLE SEVEN
Holders Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the Company
shall furnish or cause to be furnished to the Trustee
(1) semi-annually with respect to Securities of each series not later
than June 1 and December 1 of the year or upon such other dates as are set
forth in or pursuant to the Board Resolution or indenture supplemental
hereto authorizing such series, a list, in each case in such form as the
Trustee may reasonably require, of the names and addresses of Holders as of
the applicable date, and
(2) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished,
provided, however, that so long as the Trustee is the Security Registrar no such
list shall be required to be furnished.
Section 702. Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed upon it pursuant to
Section 312 of the Trust Indenture Act.
Every Holder of Securities or Coupons, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company, the Trustee,
any Paying Agent or any Security Registrar 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 Section 312(c) of the Trust Indenture
Act, 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 Section 312(b) of the Trust Indenture Act.
Section 703. Reports by Trustee.
(1) Within 60 days after May 15 of each year commencing with the first May
15 following the first issuance of Securities pursuant to Section 301, if
required by Section 313(a) of the Trust Indenture Act, the Trustee shall
transmit, pursuant to Section 313(c) of the Trust Indenture Act, a brief report
dated as of such May 15 with respect to any of the events specified
57
<PAGE>
in said Sections 313(a) and 313(b)(2) which may have occurred since the later of
the immediately preceding May 15 and the date of this Indenture.
(2) The Trustee shall transmit the reports required by Section 313(a) of
the Trust Indenture Act at the times specified therein.
(3) Reports pursuant to this Section shall be transmitted in the manner
and to the Persons required by Sections 313(c) and 313(d) of the Trust Indenture
Act.
Section 704. Reports by Company.
The Company, pursuant to Section 314(a) of the Trust Indenture Act, shall:
(1) file with the Trustee, within 15 days after the Company 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 Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934;
or, if the Company is not required to file information, documents or reports
pursuant to either of said Sections, then it shall 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
Securities Exchange Act of 1934 in respect of a security listed and registered
on a national securities exchange as may be prescribed from time to time in such
rules and regulations;
(2) 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 Company,
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(3) transmit within 30 days after the filing thereof with the Trustee, in
the manner and to the extent provided in Section 313(c) of the Trust Indenture
Act, such summaries of any information, documents and reports required to be
filed by the Company pursuant to paragraphs (1) and (2) of this Section as may
be required by rules and regulations prescribed from time to time by the
Commission.
ARTICLE EIGHT
Consolidation, Merger and Sales
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any Person or convey,
transfer or lease its properties and assets substantially as an entirety to any
Person, unless:
58
<PAGE>
(1) either the Company shall be the continuing or successor Person, or the
Person (if other than the Company) formed by such consolidation or into which
the Company is merged or which acquires by conveyance or transfer, or which
leases, the properties and assets of the Company substantially as an entirety
shall be a Corporation organized and existing under the laws of the United
States of America, any state thereof or the District of Columbia and shall
expressly assume, by an indenture (or indentures, if at such time there is more
than one Trustee) supplemental hereto, executed and delivered to the Trustee, in
form reasonably satisfactory to the Trustee, the due and punctual payment of the
principal of, any premium and interest on and any Additional Amounts with
respect to all the Outstanding Securities and the performance of every
obligation in this Indenture and the Outstanding Securities on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing; and
(3) either the Company or the successor Person shall have delivered to the
Trustee an Officers" Certificate stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to such
transaction have been complied with and an Opinion of Counsel to the effect
that, if a supplemental indenture is required as aforesaid, such supplemental
indenture complies as to form in all material respects with the requirements of
clause (1) of this Section 801.
Section 802. Successor Person Substituted for Company.
Upon any consolidation by the Company with or merger of the Company
into any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety to any Person in accordance
with Section 801, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein; and thereafter, except in
the case of a lease, the predecessor Person shall be released from all
obligations and covenants under this Indenture, the Securities and the Coupons.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or Coupons, the Company
(when authorized by or pursuant to a Board Resolution) and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, in form reasonably satisfactory to the Trustee, for any of the following
purposes:
59
<PAGE>
(1) to evidence the succession of another Person to the Company, and the
assumption by any such successor of the covenants of the Company contained
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the Holders
of all or any series of Securities (as shall be specified in such supplemental
indenture or indentures) or to surrender any right or power herein conferred
upon the Company; or
(3) to add to or change any of the provisions of this Indenture to provide
that Bearer Securities may be registrable as to principal, to change or
eliminate any restrictions on the payment of principal of, any premium or
interest on or any Additional Amounts with respect to Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities, to permit
Bearer Securities to be exchanged for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of Securities in
uncertificated or global form, provided any such action shall not adversely
affect the interests of the Holders of Securities of any series or any Coupons
appertaining thereto in any material respect; or
(4) to establish the form or terms of Securities of any series and any
Coupons appertaining thereto as permitted by Sections 201 and 301; or
(5) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 609; or
(6) to cure any ambiguity or to correct or supplement any provision herein
which may be defective or which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or questions
arising under this Indenture which shall not adversely affect the interests of
the Holders of Securities of any series then Outstanding or any Coupons
appertaining thereto in any material respect; or
(7) to add to, delete from or revise the conditions, limitations and
restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Securities, as herein set forth; or
(8) to add any additional Events of Default for the benefit of the Holders
of all or any series of Securities (as shall be specified in such supplemental
indenture); or
(9) to supplement any of the provisions of this Indenture to such extent
as shall be necessary to permit or facilitate the defeasance, covenant
defeasance and/or satisfaction and discharge of any series of Securities
pursuant to Article Four, provided that any such action shall not adversely
affect the interests of any Holder of a Security of such series and any Coupons
appertaining thereto or any other Security or Coupon in any material respect; or
(10) to secure the Securities, whether pursuant to Section 1006 or pursuant
to any other covenant or other term of any Securities or otherwise; or
60
<PAGE>
(11) to make provisions with respect to conversion or exchange rights of
Holders of Securities of any series; or
(12) to amend or supplement any provision contained herein or in any
supplemental indenture or in any Securities (which amendment or supplement may
apply to one or more series of Securities or to one or more Securities within
any series as specified in such supplemental indenture or indentures), provided
that such amendment or supplement does not apply to any Outstanding Security
issued prior to the date of such supplemental indenture and entitled to the
benefits of such provision.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company (when authorized by or pursuant to a Board Resolution), and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of the Securities of such series or
of modifying in any manner the rights of the Holders of Securities of such
series under this Indenture; provided, however, that no such supplemental
indenture, without the consent of the Holder of each Outstanding Security
affected thereby, shall
(1) change the Stated Maturity of the principal of, or any premium or
installment of interest on, or any Additional Amounts with respect to, any
Security, or reduce the principal amount thereof or the rate (or modify the
calculation of such rate) of interest thereon, or reduce any Additional Amounts
payable with respect thereto, or any premium payable upon the redemption thereof
or otherwise, or change the obligation of the Company to pay Additional Amounts
pursuant to Section 1004 (except as contemplated by Section 801(1) and permitted
by Section 901(1)), or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502 or the amount
thereof provable in bankruptcy pursuant to Section 504, or change the Place of
Payment where or the Currency in which the principal of, any premium or interest
on, or any Additional Amounts with respect to any Security is payable, or impair
the Holder"s right to institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof (or, in the case of redemption, on or after
the Redemption Date or, in the case of repayment pursuant to Article Thirteen at
the option of the Holder, on or after the date for repayment), in each case as
such Stated Maturity, Redemption Date or date for repayment may, if applicable,
be extended in accordance with the terms of such Security or any Coupon
appertaining thereto, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in Section 513 or 1007
of this Indenture, or reduce the requirements of Section 1504 for quorum or
voting, or
(3) modify any of the provisions of Article Sixteen or the definition of
"Senior Indebtedness" in a manner adverse to the Holders of Subordinated
Securities, or
61
<PAGE>
(4) modify any of the provisions of this Section, Section 513 or Section
1007, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the Holder of each Outstanding Security affected thereby, or
(5) make any change that adversely affects the right, if any, to convert
or exchange any Security for Common Stock or other securities in accordance with
its terms, or
(6) in the case of Subordinated Securities of any series, modify any of
the Subordination Provisions or the definition of "Senior Indebtedness" relating
to such series in a manner adverse to the holders of such Subordinated
Securities.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which shall have been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
Anything in this Indenture to the contrary notwithstanding, if more than
one series of Securities is Outstanding, the Company shall be entitled to enter
into a supplemental indenture under this Section 902 with respect to any one or
more series of Outstanding Securities without entering into a supplemental
indenture with respect to any other series of Outstanding Securities.
It shall not be necessary for any Act of Holders of Securities under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
As a condition to executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trust created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Sections 315(a) through 315(d) of the Trust Indenture
Act) shall be fully protected in relying upon, an Opinion of Counsel and an
Officers' Certificate to the effect that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee"s own rights, duties or immunities under this Indenture or
otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of a Security theretofore or thereafter authenticated and delivered hereunder
and of any Coupon appertaining thereto shall be bound thereby.
62
<PAGE>
Section 905. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
Section 906. Effect on Senior Indebtedness.
No supplemental indenture shall directly or indirectly modify or eliminate
the Subordination Provisions or the definition of "Senior Indebtedness"
applicable with respect to the Subordinated Securities of any series in any
manner which might terminate or impair the subordination of such series of
Subordinated Securities to such Senior Indebtedness without the prior written
consent of the Holders of such Senior Indebtedness.
Section 907. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium, Interest and Additional
Amounts.
The Company covenants and agrees for the benefit of the Holders of the
Securities of each series that it will duly and punctually pay the principal of,
any premium and interest on and any Additional Amounts with respect to the
Securities of such series in accordance with the terms thereof, any Coupons
appertaining thereto and this Indenture. Any interest due on any Bearer Security
on or before the Maturity thereof, and any Additional Amounts payable with
respect to such interest, shall be payable only upon presentation and surrender
of the Coupons appertaining thereto for such interest as they severally mature.
Section 1002. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for any series of
Securities an Office or Agency where Securities of such series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be presented or surrendered for payment,
where Securities of such series may be surrendered for registration of transfer
or exchange, where Securities of such series that are convertible or
exchangeable may be surrendered for conversion or exchange, and where notices
and demands to or upon the Company in respect of the Securities of such series
relating thereto and this Indenture may be served. If Securities of a series are
issuable as Bearer Securities, the Company
63
<PAGE>
shall maintain, subject to any laws or regulations applicable thereto, an Office
or Agency in a Place of Payment for such series which is located outside the
United States where Securities of such series and any Coupons appertaining
thereto may be presented and surrendered for payment; provided, however, that if
the Securities of such series are listed on the London Stock Exchange or the
Luxembourg Stock Exchange or any other stock exchange located outside the United
States and such stock exchange shall so require, the Company shall maintain a
Paying Agent in London, Luxembourg or any other required city located outside
the United States, as the case may be, so long as the Securities of such series
are listed on such exchange. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such Office or
Agency. If at any time the Company shall fail to maintain any such required
Office or Agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of such
series and any Coupons appertaining thereto may be presented and surrendered for
payment at the place specified for the purpose with respect to such Securities
as provided in or pursuant to this Indenture, and the Company hereby appoints
the Trustee as its agent to receive all such presentations, surrenders, notices
and demands.
Except as otherwise provided in or pursuant to this Indenture, no payment
of principal, premium, interest or Additional Amounts with respect to Bearer
Securities shall be made at any Office or Agency in the United States or by
check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, if
amounts owing with respect to any Bearer Securities shall be payable in Dollars,
payment of principal of, any premium or interest on and any Additional Amounts
with respect to any such Security may be made at the Corporate Trust Office of
the Trustee or any Office or Agency designated by the Company in the Borough of
Manhattan, The City of New York, if (but only if) payment of the full amount of
such principal, premium, interest or Additional Amounts at all offices outside
the United States maintained for such purpose by the Company in accordance with
this Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may also from time to time designate one or more other Offices
or Agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an Office or Agency
in each Place of Payment for Securities of any series for such purposes. The
Company shall give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other Office or
Agency.
Unless otherwise provided in or pursuant to this Indenture, the Company
hereby designates the Borough of Manhattan, The City of New York as a Place of
Payment for each series of Securities, initially appoints the principal office
of the Trustee located in the Borough of Manhattan, The City of New York at
which at any particular time the Trustee performs the services contemplated by
this Section 1002 (which on the date of this Indenture is located at 14 Wall
Street, 8th Floor, New York, New York 10005) as the Company"s Office or Agency
in the Borough of Manhattan, The City of New York for such purpose and initially
appoints the Trustee as the Security Registrar for each series of Securities.
The Company may subsequently
64
<PAGE>
appoint a different Office or Agency in the Borough of Manhattan, The City of
New York and, as provided in Section 305, may remove and replace from time to
time the Security Registrar.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it shall, on or before each due date of the
principal of, any premium or interest on, or any Additional Amounts with respect
to any of the Securities of such series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the Currency or Currencies in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to pay the
principal, premium, interest and Additional Amounts, as the case may be, so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided, and shall promptly notify the Trustee of any failure so
to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it shall, on or prior to each due date of the principal of, or any
premium or interest on, or any Additional Amounts with respect to, any
Securities of such series, deposit with any Paying Agent a sum (in the Currency
or Currencies described in the preceding paragraph) sufficient to pay the
principal, premium, interest and Additional Amounts, as the case may be, so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled thereto, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of any failure so to act.
The Company shall cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal of, any
premium or interest on or any Additional Amounts with respect to Securities of
such series in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as provided in or
pursuant to this Indenture;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities of such series) in the making of any payment of
principal, any premium or interest on or any Additional Amounts with respect to
the Securities of such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same terms as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such sums.
65
<PAGE>
Except as otherwise provided herein or pursuant hereto, any money deposited
with the Trustee or any Paying Agent, or then held by the Company, in trust for
the payment of the principal of, any premium or interest on or any Additional
Amounts with respect to any Security of any series or any Coupon appertaining
thereto and remaining unclaimed for two years after such principal or such
premium or interest or Additional Amount shall have become due and payable shall
be paid to the Company on Company Request, or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security or any
Coupon appertaining thereto shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may, not later than 30 days after the Company"s request for such repayment, at
the expense of the Company cause to be published once, in an Authorized
Newspaper in each Place of Payment for such series or to be mailed to Holders of
Registered Securities of such series, or both, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication or mailing nor shall it be later than
two years after such principal and any premium or interest or Additional Amounts
shall have become due and payable, any unclaimed balance of such money then
remaining will be repaid to the Company.
Section 1004. Additional Amounts.
If any Securities of a series provide for the payment of Additional
Amounts, the Company agrees to pay to the Holder of any such Security or any
Coupon appertaining thereto Additional Amounts as provided in or pursuant to
this Indenture or such Securities. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of or any premium or
interest on, or in respect of, any Security of any series or any Coupon or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided by the terms of such series established hereby or pursuant
hereto to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to such terms, and express mention
of the payment of Additional Amounts (if applicable) in any provision hereof
shall not be construed as excluding Additional Amounts in those provisions
hereof where such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of any series, if the Securities of a series provide for the payment
of Additional Amounts, at least 10 days prior to the first Interest Payment Date
with respect to such series of Securities (or if the Securities of such series
shall not bear interest prior to Maturity, the first day on which a payment of
principal is made), and at least 10 days prior to each date of payment of
principal or interest if there has been any change with respect to the matters
set forth in the below-mentioned Officers" Certificate, the Company shall
furnish to the Trustee and the Paying Agent or Paying Agents, if other than the
Trustee, an Officers" Certificate instructing the Trustee and such Paying Agent
or Paying Agents whether such payment of principal of and premium, if any, or
interest, if any, on the Securities of such series shall be made to Holders of
Securities of such series or the Coupons appertaining thereto who are United
States Aliens without withholding for or on account of any tax, assessment or
other governmental charge described in the Securities of such series or pursuant
to Section 301 with respect to the Securities of such series. If any such
66
<PAGE>
withholding shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities or Coupons, and the Company agrees to pay to the Trustee
or such Paying Agent the Additional Amounts required by the terms of such
Securities. The Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by any of them in reliance on any
Officers" Certificate furnished pursuant to this Section.
Section 1005. Corporate Existence.
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect the corporate
existence of the Company.
Section 1006. Limitation on Liens.
The Company will not, nor will it permit any Restricted Subsidiary to, at
any time create, incur, assume or guarantee any Indebtedness secured by any
mortgage, pledge, lien or security interest ("Lien") on any Principal Property
owned by the Company or any Restricted Subsidiary or any shares of capital stock
or Indebtedness of any Restricted Subsidiary, whether owned on the date of this
Indenture or thereafter acquired, without in any such case effectively
providing, concurrently with or prior to the creation, incurrence, assumption or
guarantee of such Indebtedness (the "Secured Indebtedness"), that the Securities
of any series (other than any series of Subordinated Securities) then
outstanding under this Indenture (together with, if the Company shall so
determine, any other Indebtedness or other liabilities or obligations created,
incurred, assumed or guaranteed by the Company or any Subsidiary and then
existing or thereafter created, incurred, assumed or guaranteed) shall be
secured by such Lien equally and ratably with (or, at the option of the Company,
prior to) such Secured Indebtedness, but only so long as such Secured
Indebtedness shall be so secured and outstanding; provided, however, that the
foregoing covenant shall not be applicable to Indebtedness secured by any of the
following:
(a) Liens on any property, shares of capital stock or Indebtedness
acquired (whether by merger, consolidation, acquisition of assets or
capital stock, or otherwise) after the date of this Indenture by the
Company or any Restricted Subsidiary or any property constructed or
improved after the date of this Indenture by the Company or any Restricted
Subsidiary, to secure or provide for the payment of all or any part of the
purchase price or cost thereof, or any Indebtedness created, incurred,
assumed or guaranteed to finance all or any part of the purchase thereof or
the cost of construction or cost of improvement of any such property and
which was created, incurred, assumed or guaranteed or for which a bona fide
firm commitment in writing was executed prior to, contemporaneously with or
within 270 days after the acquisition of such property, shares of capital
stock or Indebtedness or the latest to occur of the completion of
construction or improvement or the commencement of full operations of such
property, as the case may be; provided that such Liens shall not extend to
any other property of the Company or any Restricted Subsidiary; or
67
<PAGE>
(b) Liens in favor of the United States of America or any state,
territory or possession thereof or other area subject to its jurisdiction
or the District of Columbia, or any department, agency or instrumentality
or political subdivision of the United States of America or any state,
territory or possession thereof or other area subject to its jurisdiction
or the District of Columbia, or in favor of any other country, or any
department, agency or instrumentality or political subdivision thereof or
any other domestic or foreign government or governmental body, agency or
authority, to secure partial, progress, advance or other payments pursuant
to any contract, statute, law or regulation or to secure any Indebtedness
created, incurred, assumed or guaranteed for the purpose of financing all
or any part of the purchase price or the cost of construction or
improvement of the property subject to such Liens (including, but not
limited to, Liens incurred in connection with pollution control, industrial
revenue bond, private activity bond or similar financings); or
(c) Liens existing on the date of this Indenture; or
(d) Liens for or in connection with taxes, governmental assessments
or similar governmental charges or levies or legal proceedings; or
(e) Liens in favor of the Company or a Subsidiary securing
Indebtedness of the Company or a Subsidiary; or
(f) Liens on any property, shares of capital stock or Indebtedness
existing at the time of acquisition thereof (whether by merger,
consolidation, acquisition of assets or capital stock or otherwise);
provided that such Liens were not created in contemplation of such
acquisition; or
(g) Liens on any property, shares of capital stock or Indebtedness of
a Person existing at the time such Person becomes a Subsidiary or is merged
or consolidated with or into the Company or any Subsidiary; provided that
such Liens were not created in contemplation of such transaction; or
(h) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-insurance
arrangements; or
(i) statutory and common law Liens and landlords', carriers',
warehousemen's, mechanics', suppliers', materialmen's, bankers',
repairmen's and other similar Liens arising in the ordinary course of
business; or
(j) pledges or deposits to secure performance in connection with
bids, tenders, contracts or leases or surety, stay, appeal, indemnity,
customs or performance bonds; or
(k) Liens incurred in connection with any forward contract, futures
contract, swap, option or other financial agreement or arrangement
(including, without limitation, any cap, floor, collar, lock or similar
agreement or arrangement) which was entered into
68
<PAGE>
for hedging purposes or to fix, or to protect against changes in, interest
rates, currency exchange rates or commodity prices; or
(l) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any Lien referred to in
any of the foregoing subparagraphs (a) through (k) or in this subparagraph
(l) (including, without limitation, in connection with any extension,
renewal, replacement or refinancing, in whole or in part, of any
Indebtedness secured thereby); provided that any Lien permitted under this
subparagraph (l) is limited to all or any part of the same property, shares
of capital stock and/or Indebtedness subject to the Lien so extended,
renewed or replaced and secures no more Indebtedness than the Indebtedness
secured by the Lien so extended, renewed or replaced plus any premiums,
fees, costs or expenses payable in connection with the replacement,
extension, renewal or refinancing of such Lien or the Indebtedness secured
thereby.
Notwithstanding the foregoing, the Company and any Restricted Subsidiary
may at any time create, incur, assume or guarantee Secured Indebtedness which
would otherwise be subject to the foregoing restrictions if, immediately after
giving effect thereto, the aggregate principal amount of all Secured
Indebtedness (not including Indebtedness permitted to be secured by Liens under
subparagraphs (a) through (l) above) does not exceed 15% of Consolidated Net
Tangible Assets determined as of such time.
Unless otherwise expressly provided pursuant to Section 301 with respect to
a series of Subordinated Securities, this Section 1006 has been included in this
Indenture for the sole and exclusive benefit of each series of Securities other
than any series of Subordinated Securities, this Section 1006 shall not be
applicable to any series of Subordinated Securities, the Holders of the
Subordinated Securities of any series shall not be entitled to any right or
benefit under this Section 1006, and any breach of or failure to comply with
this Section 1006 shall not constitute a default or Event of Default with
respect to any series of Subordinated Securities.
Section 1007. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Section 1002, 1005 or 1006 with respect to
the Securities of any series and, if expressly provided pursuant to Section
301(18), any additional covenants applicable to the Securities of such series if
before the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities of such series, by Act of such
Holders, either shall waive such compliance in such instance or generally shall
have waived compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
Section 1008. Company Statement as to Compliance.
The Company shall deliver to the Trustee, within 120 days after the end of
each fiscal year, a written statement (which need not be contained in or
accompanied by an Officers'
69
<PAGE>
Certificate) signed by the principal executive officer, the principal financial
officer or the principal accounting officer of the Company, stating whether or
not, to his or her knowledge, the Company is in default in the performance and
observance of any of the terms, provisions and conditions of this Indenture
(without regard to notice requirements or periods of grace) and if the Company
shall be in default, specifying all such defaults and the nature and status
thereof of which he or she may have knowledge.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
Redemption of Securities of any series at the option of the Company as
permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and (except as otherwise provided
herein or pursuant hereto) this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by or pursuant to a Board Resolution or an Officers" Certificate. In case of any
redemption at the election of the Company of less than all of the Securities of
any series, the Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the principal amount
of Securities of such series to be redeemed and, in the event that the Company
shall determine that the Securities of any series to be redeemed shall be
selected from Securities of such series having the same issue date, interest
rate or interest rate formula, Stated Maturity and other terms (the "Equivalent
Terms"), the Company shall notify the Trustee of such Equivalent Terms.
Section 1103. Selection by Trustee of Securities to be Redeemed.
If less than all of the Securities of any series are to be redeemed or if
less than all of the Securities of any series with Equivalent Terms are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee from the Outstanding
Securities of such series or from the Outstanding Securities of such series with
Equivalent Terms, as the case may be, not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of portions of the principal amount of
Registered Securities of such series; provided, however, that no such partial
redemption shall reduce the portion of the principal amount of a Security of
such series not redeemed to less than the minimum denomination for a Security of
such series established herein or pursuant hereto.
The Trustee shall promptly notify the Company and the Security Registrar
(if other than itself) in writing of the Securities selected for redemption and,
in the case of any Securities selected for partial redemption, the principal
amount thereof to be redeemed.
70
<PAGE>
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal of such Securities which has been or is to be redeemed.
Unless otherwise specified in or pursuant to this Indenture or the
Securities of any series, if any Security selected for partial redemption is
converted or exchanged for Common Stock or other securities in part before
termination of the conversion or exchange right with respect to the portion of
the Security so selected, the converted or exchanged portion of such Security
shall be deemed (so far as may be) to be the portion selected for redemption.
Securities which have been converted or exchanged during a selection of
Securities to be redeemed shall, unless otherwise directed by the Company, be
treated by the Trustee as Outstanding for the purpose of such selection.
Section 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 106,
not less than 30 nor more than 60 days prior to the Redemption Date, unless a
shorter period is specified in the Securities to be redeemed, to the Holders of
Securities to be redeemed. Failure to give notice by mailing in the manner
herein provided to the Holder of any Registered Securities designated for
redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed,
(4) that, in case any Security is to be redeemed in part only, on and
after the Redemption Date, upon surrender of such Security, the Holder of such
Security will receive, without charge, a new Security or Securities of
authorized denominations for the principal amount thereof remaining unredeemed,
(5) that, on the Redemption Date, the Redemption Price shall become due
and payable upon each such Security or portion thereof to be redeemed, together
(if applicable) with accrued and unpaid interest, if any, thereon (subject, if
applicable, to the provisos to the first paragraph of Section 1106), and, if
applicable, that interest thereon shall cease to accrue on and after said date,
71
<PAGE>
(6) the place or places where such Securities, together (in the case of
Bearer Securities) with all Coupons appertaining thereto, if any, maturing after
the Redemption Date, are to be surrendered for payment of the Redemption Price
and any accrued interest and Additional Amounts pertaining thereto,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer Securities of
any series, if any, surrendered for redemption must be accompanied by all
Coupons maturing subsequent to the date fixed for redemption or the amount of
any such missing Coupon or Coupons will be deducted from the Redemption Price,
unless security or indemnity satisfactory to the Company, the Trustee and any
Paying Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such Bearer
Securities may be exchanged for Registered Securities not subject to redemption
on the Redemption Date pursuant to Section 305 or otherwise, the last date, as
determined by the Company, on which such exchanges may be made,
(10) in the case of Securities of any series that are convertible or
exchangeable into Common Stock or other securities, the then current conversion
or exchange price or rate, the date or dates on which the right to convert or
exchange the principal of the Securities of such series to be redeemed will
commence or terminate, as applicable, and the place or places where such
Securities may be surrendered for conversion or exchange, and
(11) the CUSIP number or the Euroclear or the Cedel reference numbers of
such Securities, if any (or any other numbers used by a Depository to identify
such Securities).
A notice of redemption published as contemplated by Section 106 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company"s request, by the
Trustee in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit, with respect
to the Securities of any series called for redemption pursuant to Section 1104,
with the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money in the applicable Currency sufficient to pay the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date, unless
otherwise specified pursuant to Section 301 for or in the Securities of such
series) any accrued interest on and Additional Amounts with respect thereto, all
such Securities or portions thereof which are to be redeemed on that date.
72
<PAGE>
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, together with (unless otherwise provided
with respect to the Securities of such series pursuant to Section 301) accrued
and unpaid interest, if any, thereon and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest, if any) such Securities shall cease to bear interest and the Coupons
for such interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender of any such
Security for redemption in accordance with said notice, together with all
Coupons, if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price, together with,
unless otherwise provided in or pursuant to this Indenture, any accrued and
unpaid interest thereon and Additional Amounts with respect thereto to but
excluding the Redemption Date; provided, however, that, except as otherwise
provided in or pursuant to this Indenture or the Bearer Securities of such
series, installments of interest on Bearer Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable only upon presentation and
surrender of Coupons for such interest (at an Office or Agency located outside
the United States except as otherwise provided in Section 1002), and provided,
further, that, except as otherwise specified in or pursuant to this Indenture or
the Registered Securities of such series, installments of interest on Registered
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the Regular Record
Dates therefor according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant Coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price, or, at the option of the
Company, after payment to the Trustee for the benefit of the Company of, an
amount equal to the face amount of all such missing Coupons, or the surrender of
such missing Coupon or Coupons may be waived by the Company and the Trustee if
there be furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of
such Security shall surrender to the Trustee or any Paying Agent any such
missing Coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount so
deducted; provided, however, that any interest or Additional Amounts represented
by Coupons shall be payable only upon presentation and surrender of those
Coupons at an Office or Agency for such Security located outside of the United
States except as otherwise provided in Section 1002.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium, until paid, shall bear
interest from the Redemption Date at the rate prescribed therefor in the
Security or, if no rate is prescribed therefor in the Security, at the rate of
interest, if any, borne by such Security.
73
<PAGE>
Section 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any Office or Agency for such Security (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing) and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Registered Security or Securities of the
same series, containing identical terms and provisions, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered. If a Security in global form is so surrendered, the Company shall
execute, and the Trustee shall authenticate and deliver to the Depository for
such Security in global form as shall be specified in the Company Order with
respect thereto to the Trustee, without service charge, a new Security in global
form in a denomination equal to and in exchange for the unredeemed portion of
the principal of the Security in global form so surrendered.
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series, except as otherwise permitted or
required in or pursuant to this Indenture or any Security of such series issued
pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of such series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series and this Indenture.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of any series to be made pursuant to the
terms of such Securities, (1) deliver Outstanding Securities of such series
(other than any of such Securities previously called for redemption or any of
such Securities in respect of which cash shall have been released to the
Company), together in the case of any Bearer Securities of such series with all
unmatured Coupons appertaining thereto, and (2) apply as a credit Securities of
such series which have been redeemed either at the election of the Company
pursuant to the terms of such series of Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, provided that such Securities have not been previously so credited.
Such
74
<PAGE>
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly. If as a result of the delivery or credit of Securities of any
series in lieu of cash payments pursuant to this Section 1202, the principal
amount of Securities of such series to be redeemed in order to exhaust the
aforesaid cash payment shall be less than $100,000, the Trustee need not call
Securities of such series for redemption, except upon Company Request, and such
cash payment shall be held by the Trustee or a Paying Agent and applied to the
next succeeding sinking fund payment, provided, however, that the Trustee or
such Paying Agent shall at the request of the Company from time to time pay over
and deliver to the Company any cash payment so being held by the Trustee or such
Paying Agent upon delivery by the Company to the Trustee of Securities of that
series purchased by the Company having an unpaid principal amount equal to the
cash payment requested to be released to the Company.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 75 days prior to each sinking fund payment date for any
series of Securities, the Company shall deliver to the Trustee an Officers"
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that series pursuant to Section 1202, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers" Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 60 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 1103 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
Repayment at the Option of Holders
Section 1301. Applicability of Article.
Securities of any series which are repayable at the option of the Holders
thereof before their Stated Maturity shall be repaid in accordance with the
terms of the Securities of such series. The repayment of any principal amount of
Securities pursuant to such option of the Holder to require repayment of
Securities before their Stated Maturity, for purposes of Section 309, shall not
operate as a payment, redemption or satisfaction of the indebtedness represented
by such Securities unless and until the Company, at its option, shall deliver or
surrender the same to the Trustee with a directive that such Securities be
cancelled. Notwithstanding anything to the contrary contained in this Section
1301, in connection with any repayment of Securities, the
75
<PAGE>
Company may arrange for the purchase of any Securities by an agreement with one
or more investment bankers or other purchasers to purchase such Securities by
paying to the Holders of such Securities on or before the close of business on
the repayment date an amount not less than the repayment price payable by the
Company on repayment of such Securities, and the obligation of the Company to
pay the repayment price of such Securities shall be satisfied and discharged to
the extent such payment is so paid by such purchasers. The Company will give
written notice to the Trustee at least five Business Days prior to the beginning
of any period during which Holders may tender their Securities for repayment
pursuant to this Section 1301.
ARTICLE FOURTEEN
Securities in Foreign Currencies
Section 1401. Applicability of Article.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same Currency or (ii)
any distribution to Holders of Securities of any series in which not all of such
Securities are denominated in the same Currency, in the absence of any provision
to the contrary in or pursuant to this Indenture or the Securities of such
series, any amount in respect of any Security denominated in a Currency other
than Dollars shall be treated for any such action, determination or distribution
as that amount of Dollars that could be obtained for such amount on such
reasonable basis of exchange and as of the record date with respect to
Registered Securities of such series (if any) for such action, determination or
distribution (or, if there shall be no applicable record date, such other date
reasonably proximate to the date of such distribution) as the Company may
specify in a written notice to the Trustee or, in the absence of such written
notice, as the Trustee may determine.
ARTICLE FIFTEEN
Meetings of Holders of Securities
Section 1501. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at any time
and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other Act
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
Section 1502. Call, Notice and Place of Meetings.
(1) The Trustee may at any time call a meeting of Holders of Securities of
any series for any purpose specified in Section 1501, to be held at such time
and at such place in the Borough of Manhattan, The City of New York, or, if
Securities of such series have been issued in whole or in part as Bearer
Securities, in London or in such place outside the United States as the Trustee
shall determine. Notice of every meeting of Holders of Securities of any series,
76
<PAGE>
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 106, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(2) In case at any time the Company (by or pursuant to a Board Resolution)
or the Holders of at least 10% in principal amount of the Outstanding Securities
of any series shall have requested the Trustee to call a meeting of the Holders
of Securities of such series for any purpose specified in Section 1501, by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have mailed notice of or made
the first publication of the notice of such meeting within 21 days after receipt
of such request (whichever shall be required pursuant to Section 106) or shall
not thereafter proceed to cause the meeting to be held as provided herein, then
the Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York, or, if Securities of such series are
to be issued as Bearer Securities, in London for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in clause (1) of
this Section.
Section 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
Section 1504. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of at least 66-2/3% in
principal amount of the Outstanding Securities of a series, the Persons entitled
to vote 66-2/3% in principal amount of the Outstanding Securities of such series
shall constitute a quorum. In the absence of a quorum within 30 minutes after
the time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved. In any other case
the meeting may be adjourned for a period of not less than 10 days as determined
by the chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may be
further adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in
Section 1502(1), except that such notice need be given only once not less than
five days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
77
<PAGE>
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 902, any
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of at least 66-2/3% in principal amount of
the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly convened and at which a quorum is present as aforesaid
only by the affirmative vote of the Holders of at least 66-2/3% in principal
amount of the Outstanding Securities of that series; and provided, further,
that, except as limited by the proviso to Section 902, any resolution with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other Act which this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of a series may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of such
series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not such Holders were present or represented at
the meeting.
Section 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(1) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of such series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(2) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1502(2), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
78
<PAGE>
(3) At any meeting, each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of Securities of
such series held or represented by him; provided, however, that no vote shall be
cast or counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding. If
the Securities of such series are issuable in minimum denominations of less than
$1,000, then a Holder of such a Security in a principal amount of less than
$1,000 shall be entitled to a fraction of one vote which is equal to the
fraction that the principal amount of such Security bears to $1,000. The
chairman of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(4) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
Section 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1502 and, if
applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE SIXTEEN
Subordination of Subordinated Securities
Section 1601. Agreement to Subordinate.
The Company, for itself, its successors and assigns, covenants and agrees,
and each Holder of Subordinated Securities of any series by his acceptance
thereof, likewise covenants and agrees, that the payment of the principal of
(and premium, if any) and interest, if any, on, and Additional Amounts, if any,
in respect of each and all of the Subordinated Securities of such series shall
be expressly subordinated, to the extent and in the manner provided in the
79
<PAGE>
Subordination Provisions established with respect to the Subordinated Securities
of such series pursuant to Section 301(24) hereof, in right of payment to the
prior payment in full of all Senior Indebtedness with respect to such series.
* * * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
80
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
CNF TRANSPORTATION INC.
By __________________________________________
Name:
Title:
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
By __________________________________________
Name:
Title:
81
<PAGE>
[Legend for inclusion in global Security -- THIS NOTE IS A GLOBAL SECURITY
REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF. THIS NOTE IS
EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO
THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY.]
[Legend for inclusion in global Security if DTC is Depository -- UNLESS THIS
NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY (AS DEFINED BELOW) OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
No.: R-.
CUSIP No.: 12612W AA2 Principal Amount: $.
CNF Transportation Inc.
8 7/8% Notes due 2010
CNF Transportation Inc., a Delaware corporation (hereinafter called the
"Company", which term includes any successor corporation under the Indenture
referred to below), for value received, hereby promises to pay to ., or
registered assigns, the principal sum of . DOLLARS ($.) on May 1, 2010 and to
pay interest thereon from March 8, 2000 or from the most recent date to which
interest has been paid or duly provided for, semiannually in arrears on May 1
and November 1 of each year (each, an "Interest Payment Date"), commencing May
1, 2000, and at Maturity, at the rate of 8 7/8% per annum, until the principal
hereof is paid or duly made available for payment. Interest on this Note shall
be calculated on the basis of a 360-day year consisting of twelve 30-day months.
The interest so payable and punctually paid or duly provided for on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Note (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the April 15 or October 15 (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date. Any such interest which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
shall forthwith cease to be payable to the registered Holder hereof on the
relevant Regular Record Date by virtue of having been such Holder, and may be
paid to the Person in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to the Holder of this Note not less than 10 days prior to
such Special Record Date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Notes may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in such Indenture.
Payment of the principal of and premium, if any, and the interest on this
Note will be made at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and
<PAGE>
private debts; provided, however, that, at the option of the Company, interest
may be paid by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register or by transfer to an account
maintained by the payee located in the United States.
This Note is one of a duly authorized issue of Securities of the Company
(herein called the "Notes") issued and to be issued in one or more series under
an Indenture dated as of March 8, 2000 (herein called, together with all
indentures supplemental thereto, the "Indenture") between the Company and Bank
One Trust Company, National Association, as trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the Notes,
and the terms upon which the Notes are, and are to be, authenticated and
delivered. This Note is one of the series designated on the face hereof,
limited (subject to exceptions provided in the Indenture and subject to the
right of the Company to reopen such series for issuances of additional
Securities of such series) in aggregate principal amount to $200,000,000.
The Notes are redeemable, in whole at any time or from time to time in
part, at the option of the Company on any date (each, a "Redemption Date") at a
redemption price (the "Redemption Price") equal to the greater of:
(1) 100% of the principal amount of the Notes to be redeemed, and
(2) the sum of the present values of the remaining scheduled payments of
principal and interest thereon (exclusive of interest accrued to the
applicable Redemption Date) discounted to that Redemption Date on a
semiannual basis, assuming a 360-day year consisting of twelve 30-day
months, at the Treasury Rate plus 35 basis points,
plus, in either case, accrued and unpaid interest on the principal amount being
redeemed to that Redemption Date. Notwithstanding the foregoing, installments
of interest on Notes that are due and payable on an Interest Payment Date
falling on or prior to the relevant Redemption Date will be payable to the
Holders of those Notes registered as such at the close of business on the
relevant Regular Record Date according to their terms and the provisions of the
Indenture.
As used in this Note, the following terms have the meanings set forth
below:
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the remaining
term of the Notes to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of the Notes.
"Comparable Treasury Price" means, with respect to any Redemption Date for
the Notes:
(1) the average of the Reference Treasury Dealer Quotations for that
Redemption Date, after excluding the highest and lowest of those
Reference Treasury Dealer Quotations, if the Trustee obtains at
least four such quotations, or
(2) if the Trustee obtains fewer than four such Reference Treasury
Dealer Quotations, the average of all of those quotations.
"Quotation Agent" means a Reference Treasury Dealer appointed by the
Company.
"Reference Treasury Dealer" means each of
(1) J. P. Morgan Securities Inc., Salomon Smith Barney Inc., ABN AMRO
Incorporated and Credit Suisse First Boston Corporation and their
respective successors, provided, however, that if any of the
foregoing shall cease to be a primary U.S. Government
<PAGE>
securities dealer in New York City (a "Primary Treasury Dealer"),
the Company will substitute therefor another Primary Treasury
Dealer; and
(2) any other Primary Treasury Dealer or Primary Treasury Dealers
selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Company, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day (as defined below) preceding that
Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date for the Notes,
the rate per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for that Redemption Date.
The Treasury Rate shall be calculated on the third Business Day preceding
the applicable Redemption Date. As used in the immediately preceding sentence
and in the definition of "Reference Treasury Dealer Quotations" above, the term
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday which
is not a day on which banking institutions in The City of New York are
authorized or obligated by law or executive order to close.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before any Redemption Date to each Holder of Notes to be redeemed as
provided in the Indenture.
Unless the Company defaults in the payment of the Redemption Price, on and
after any Redemption Date interest will cease to accrue on the Notes or portions
thereof called for redemption on that Redemption Date.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of and accrued and unpaid interest on the Notes may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series issued
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding of each series affected thereby. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities of any series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Notes
issued upon the registration of transfer hereof or in exchange herefor or in
lieu hereof, whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Note, at the time, place and rate, and in the coin or currency,
herein and in the Indenture prescribed.
As provided in the Indenture and subject to certain limitations set forth
therein, the transfer of this Note may be registered on the Security Register
upon surrender of this Note for registration of transfer at the office or agency
of the Company maintained for the purpose in any place where the principal of
and interest on this Note are payable, duly endorsed, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by the Holder hereof or by his attorney duly
authorized in writing, and
<PAGE>
thereupon one or more new Notes, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Notes are issuable only in registered form without coupons in the
denominations of $1,000 and integral multiples of $1,000. As provided in the
Indenture and subject to certain limitations set forth therein, the Notes are
exchangeable for a like aggregate principal amount of Notes of authorized
denominations as requested by the Holders surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge and any other expenses (including fees and
expenses of the Trustee) that may be imposed in connection therewith, other than
in certain cases provided in the Indenture.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note shall be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture contains provisions whereby (i) the Company may be discharged
from its obligations with respect to the Notes (subject to certain exceptions)
or (ii) the Company may be released from its obligations under specified
covenants and agreements in the Indenture, in each case if the Company
irrevocably deposits with the Trustee money or Government Obligations sufficient
to pay and discharge the entire indebtedness on all Notes, and satisfies certain
other conditions, all as more fully provided in the Indenture. In addition, the
Indenture shall cease to be of further effect (subject to certain exceptions)
with respect to the Notes when (1) either (A) all Notes previously authenticated
and delivered have been delivered (subject to certain exceptions) to the Trustee
for cancellation, or (B) all Notes (i) have become due and payable or (ii) will
become due and payable at their Stated Maturity within one year or (iii) are to
be called for redemption within one year and, in the case of (i), (ii) or (iii)
above, the Company has deposited with the Trustee as trust funds in trust for
such purpose, Dollars in an amount sufficient to pay and discharge the entire
indebtedness on all such Notes not theretofore delivered to the Trustee for
cancellation, including the principal of and premium, if any, and interest on
such Notes, to the date of such deposit (in the case of Notes which have become
due and payable) or to the Maturity thereof, as the case may be, (2) the Company
has paid or caused to be paid all other sums payable under the Indenture with
respect to the Outstanding Notes, and (3) the Company satisfies certain other
conditions, all as more fully provided in the Indenture.
This Note shall be governed by and construed in accordance with the laws of
the State of New York.
All terms used in this Note which are defined in the Indenture and not
defined herein shall have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee under the Indenture by the manual signature of one of its
authorized signatories, this Note shall not be entitled to any benefits under
the Indenture or be valid or obligatory for any purpose.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
[Seal]
CNF TRANSPORTATION INC.
Attest:_________________________ By: __________________________________
Name: Gary S. Cullen Name: Chutta Ratnathicam
Title: Assistant Secretary Title: Senior Vice President and
Chief Financial Officer
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
By: ______________________________________
Authorized Signatory
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM--as tenants in common UNIF GIFT MIN ACT - - ____________Custodian_________________
TEN ENT--as tenants by the entireties (Cust) (Minor)
JT TEN--as joint tenants with right of survivorship Under Uniform Gifts to Minors
and not as tenants in common Act___________________________________
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
______________________________________
FOR VALUE RECEIVED, the undersigned registered holder hereby sell(s), assign(s)
and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________________________
_______________________________________________________
________________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
________________________________________________________________________________
the within security and all rights thereunder, hereby irrevocably constituting
and appointing
_______________________________________________________________________ Attorney
to transfer said security on the books of the Company with full power of
substitution in the premises.
Dated:__________________________________________________________________________
Notice: The signature to this assignment must correspond with the
name as it appears upon the face of the within security in every
particular, without alteration or enlargement or any change whatever.
