As filed with the Securities and Exchange Commission on October 15, 1999
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Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
COOPER TIRE & RUBBER COMPANY
(Exact Name of Registrant as Specified in Its Charter)
Delaware 34-4297750
(State of Incorporation) (I.R.S. Employer
Identification Number)
Lima & Western Avenues Stan C. Kaiman, Copy of Service to:
Findlay, Ohio 45840 Secretary Paul W. Theiss
(419) 423-1321 Cooper Tire & Rubber Company Mayer, Brown & Platt
(Address, Including Lima & Western Avenues 190 South LaSalle
Zip Code, and Telephone Findlay, Ohio 45840 Street
Number, Including Area (419) 423-1321 Chicago, Illinois
Code, of Registrant's (Name, Address, Including 60603
Principal Executive Zip Code, and Telephone
Offices) Number, Including Area
Code, of Agent for Service)
Approximate date of commencement of proposed sale to the public: From
time to time after the Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box: ( )
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box: (X)
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: ( )
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: ( )
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box: ( )
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CALCULATION OF REGISTRATION FEE
=============================================================================
Proposed
Title of Each Class of Maximum Aggregate Amount of
Security to be Registered Offering Price Registration Fee (1)
- -----------------------------------------------------------------------------
Debt Securities (2) -
- -----------------------------------------------------------------------------
Preferred Stock, par value
$1.00 per share (2)(3) -
- -----------------------------------------------------------------------------
Depositary Shares (2)(3) -
- -----------------------------------------------------------------------------
Common Stock, par value $1.00
per share (2)(3) -
- -----------------------------------------------------------------------------
Warrants to Purchase Debt Securities,
Preferred Stock or Common Stock (2) -
- -----------------------------------------------------------------------------
Total $1,200,000,000 $333,600
=============================================================================
(1) Pursuant to Rule 457(o) under the Securities Act of 1933, the
registration fee has been calculated on the basis of the maximum aggregate
offering price of all the securities listed.
(2) In no event will the aggregate offering price of Debt Securities,
Preferred Stock, Depositary Shares, Common Stock and Warrants registered under
this registration statement exceed $1,200,000,000.
(3) There is hereby registered such indeterminate amount of Preferred Stock,
Depositary Shares and Common Stock as may be issued upon conversion of Debt
Securities, Preferred Stock or Depositary Shares registered hereunder, for
which no separate consideration will be received. In addition, there are
hereby registered Preferred Share Purchase Rights which will be issued
together with Common Stock registered hereunder, for which no separate
consideration will be received.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Securities and Exchange Commission,
acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
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SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED OCTOBER 15, 1999
PROSPECTUS
$1,200,000,000
COOPER TIRE & RUBBER COMPANY
Debt Securities
Preferred Stock
Depositary Shares
Common Stock
Warrants
We will provide specific terms of these securities in supplements to this
prospectus. You should read this prospectus and any supplement carefully
before you invest.
We may offer any of the following securities from time to time:
- debt securities;
- preferred stock;
- fractional interests in preferred stock represented by depositary
shares;
- common stock; and
- warrants to purchase debt securities, common stock or preferred stock.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if
this prospectus is truthful or complete. Any representation to the contrary is
a criminal offense.
The date of this Prospectus is October 15, 1999
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TABLE OF CONTENTS
Prospectus
Page
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About This Prospectus 5
Where You Can Find More Information 5
Forward-Looking Statements 6
Cooper Tire & Rubber Company 7
Ratios of Earnings to Fixed Charges and Earnings to Combined
Fixed Charges and Preferred Stock Dividends 7
Use of Proceeds 8
Description of Debt Securities 8
Description of Common Stock 16
Description of Preferred Stock 16
Description of Depositary Shares 18
Description of Warrants 22
Plan of Distribution 23
Experts 24
Legal Matters 25
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the SEC using a "shelf" registration process. Under this shelf process, we may
sell any combination of the securities described in this prospectus in one or
more offerings up to a total dollar amount of $1,200,000,000. This prospectus
provides you with a general description of the securities we may offer. Each
time we sell securities, we will provide a prospectus supplement that will
contain specific information about the terms of that offering. The prospectus
supplement may also add, update or change information contained in this
prospectus. If there is any inconsistency between the information in this
prospectus and the prospectus supplement, you should rely on the information
in the prospectus supplement. You should read both this prospectus and any
prospectus supplement together with the additional information described under
the heading "Where You Can Find More Information."
Unless otherwise indicated or unless the context requires otherwise, all
references in this prospectus to "we," "us," "our" or similar references mean
Cooper Tire & Rubber Company and its subsidiaries.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
SEC's public reference rooms in Washington, D.C., Chicago, Illinois and New
York, New York. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms. Our SEC filings are also available to the
public from the SEC's Web site at "http://www.sec.gov."
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to these documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below, which we have already
filed with the SEC, and any future filings we make with the SEC under Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until we sell
all of the securities covered by this prospectus:
- Our Annual Report on Form 10-K, as amended by Form 10-K/A, for the
fiscal year ended December 31, 1998;
- Our Quarterly Reports on Form 10-Q for the quarterly periods ended
March 31, 1999 and June 30, 1999;
- Our Current Report on Form 8-K, dated July 27, 1999, and filed on July
30, 1999;
- The proxy statement/prospectus of The Standard Products Company and
us, dated September 14, 1999, filed as part of Amendment No. 1 to our
Form S-4 Registration Statement on September 14, 1999;
- The description of our preferred stock purchase rights contained in
our registration statement on Form 8-A, including any amendments for
the purpose of updating that description; and
- The description of our common stock contained in our registration
statement filed under Section 12 of the Securities Exchange Act,
including any amendment or report for the purpose of updating that
description.
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We also incorporate by reference the documents listed below, which
Standard Products has filed with the SEC:
- Standard Products' Annual Report on Form 10-K for the fiscal year
ended June 30, 1999;
- Standard Products' Current Report on Form 8-K, dated July 27, 1999,
and filed with the SEC on August 3, 1999.
You may request a copy of these filings (other than any exhibits, unless
we have specifically incorporated by reference an exhibit in this prospectus)
at no cost, by writing or telephoning us at the following address:
Cooper Tire & Rubber Company
Lima & Western Avenues
Findlay, Ohio 45840
Telephone: (419) 423-1321
Attention: Secretary
This prospectus is part of a registration statement we filed with the
SEC. We have incorporated some exhibits into this registration statement. You
should read the exhibits carefully for provisions that may be important to
you.
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not
authorized anyone to provide you with different information. We are not making
an offer of these securities in any state where the offer is not permitted.
You should not assume that the information in this prospectus or the documents
incorporated by reference is accurate as of any date other than the date on
the front of this prospectus or those documents.
FORWARD-LOOKING STATEMENTS
This prospectus and the information incorporated by reference may contain
forward-looking statements involving uncertainty and risk. It is possible our
future performance may differ from expectations due to a variety of factors
including but not limited to:
- changes in economic conditions in the world;
- increased competitive activity;
- consolidation among our competitors and customers;
- technology advancements;
- fluctuations in raw material and energy prices;
- changes in interest and foreign exchange rates; and
- other unanticipated events and conditions.
It is not possible to foresee or identify all of these factors. Any
forward-looking statements in this prospectus and the information incorporated
by reference are based on assumptions and analysis made in light of our
experience and perception of historical trends, current conditions, expected
future developments and other factors we believe are appropriate in the
circumstances. Prospective investors are cautioned that any forward-looking
statement is not a guarantee of future performance, and actual results may
differ materially from those we project. We make no commitment to update any
forward-looking statement included in this prospectus or the information
incorporated by reference, or to disclose any facts, events or circumstances
that may affect the accuracy of any forward-looking statement.
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COOPER TIRE & RUBBER COMPANY
Our primary business is the conversion of natural and synthetic rubbers
into a variety of carbon black reinforced rubber products. We manage our
business as two operating segments. Our Tire Operations segment manufactures
and markets automobile, truck and motorcycle tires and inner tubes. Our
Engineered Products Operations segment produces and markets active and passive
vibration control systems, automotive sealing systems and hose and hose
assemblies.
Our Tire Operations segment sells its products in the replacement tire
market domestically and internationally to independent tire dealers, wholesale
tire distributors and large retail chains. Dealers and distributors accounted
for approximately 71.5 percent of all replacement passenger tires sold in the
United States in 1998. During 1997, this share was approximately 71 percent
and during 1996, it was approximately 69.5 percent.
Our Engineered Products Operations segment engineers and manufactures
rubber parts for automotive vehicle manufacturers. Our engineering and
marketing personnel work closely with these customers to assist in the design
and development of rubber products to meet their changing requirements.
On July 27, 1999, we announced that we signed a definitive merger
agreement to acquire The Standard Products Company. Standard Products'
outstanding stock will be valued at $36.50 per share or approximately $584.4
million. In addition, we will assume Standard Products' outstanding debt which
was approximately $206.3 million at October 1, 1999.
Under the merger agreement, Standard Products' stock will be exchanged
for $36.50 in cash or the equivalent value of our common stock subject to a
collar arrangement. The exchange ratio will be determined based on the average
closing price of our common stock for the 20 trading days ending five days
prior to the merger's closing date. Under the formula, if the price of our
common stock rises, the exchange ratio will be reduced, but not below 1.472
shares of our common stock for each share of Standard Products' stock.
Further, if the price of our stock falls, the exchange ratio will increase,
but not above 1.825 shares of our common stock for each share of Standard
Products' stock.
The merger agreement calls for holders of approximately 45% of Standard
Products' outstanding shares to receive common stock and 55% to receive cash.
If, however, the average of the high and low prices for our common stock on
the merger closing date falls below $18, the entire purchase price will be
paid in cash at $36.50 per share of Standard Products' stock.
We were incorporated in Delaware in 1930. Our common stock is listed on
the New York Stock Exchange under the symbol "CTB."
RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS TO
COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
Our ratios of earnings to fixed charges and earnings to combined fixed
charges and preferred stock dividends for each of the periods indicated are
set forth in the table below. For the purpose of computing these ratios,
"earnings" consist of consolidated income before income taxes, adjusted for
the portion of fixed charges deducted from such earnings. "Fixed charges"
consist of interest on all indebtedness (including capital lease obligations)
and amortization of debt expense, capitalized interest and the portion of
interest expense on operating leases deemed representative of the interest
factor.
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<TABLE>
<CAPTION>
Period Ended December 31
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1994 1995 1996 1997 1998 1998 1999
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges 35.9 32.5 21.0 10.2 10.0 9.4 11.1
Ratio of earnings to combined fixed
fixed charges and preferred stock
dividends 35.9 32.5 21.0 10.2 10.0 9.4 11.1
</TABLE>
USE OF PROCEEDS
Except as otherwise provided in a prospectus supplement, we will use the
net proceeds from the sale of these securities to reduce indebtedness incurred
for the purchase price of the Standard Products merger and otherwise as we
require from time to time, including for other acquisitions, working capital,
repayment of existing indebtedness and for other general corporate purposes.
Until we use net proceeds for those purposes, we may invest them in A1 and P1
commercial paper, U.S. treasury securities and certificates of deposit or use
them to reduce other borrowings.
DESCRIPTION OF DEBT SECURITIES
This prospectus describes the general terms and provisions of the debt
securities. When we offer to sell a particular series of debt securities, we
will describe the specific terms of the securities in a supplement to this
prospectus. The prospectus supplement will also indicate whether the general
terms and provisions described in this prospectus apply to the particular
series of debt securities being offered. The debt securities will be issued
under an indenture between us and The Chase Manhattan Bank, as Trustee, dated
as of March 17, 1997.
We have summarized the material terms of the indenture below. We have
filed the indenture as an exhibit to the registration statement for these
securities that we have filed with the SEC. You should read the indenture for
the provisions that are important to you.
Principal terms of the debt securities
The debt securities will rank equally and ratably with all of our other
unsecured and unsubordinated indebtedness. The indenture does not limit the
amount of other indebtedness or securities which we may issue, except for
limitations on our ability to incur secured indebtedness that are described
below. Unless otherwise provided in a prospectus supplement, the indenture
does not contain any provisions that would protect holders of debt securities
if we engage in a highly leveraged transaction.
A prospectus supplement relating to any series of debt securities being
offered will include specific terms relating to that series of debt
securities. These terms will include some or all of the following:
- their title;
- any limit on their total principal amount;
- the percentage of their principal amount at which they will be issued;
- the date on which they will mature;
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- if they bear interest, the interest rate or the method by which the
interest rate will be determined;
- the times at which any interest will be payable or the manner of
determining the interest payment dates;
- the place where the principal and any interest will be payable;
- any optional redemption periods and the redemption price;
- the portion of their principal amount which will be payable if their
maturity is accelerated;
- any sinking fund requirements;
- whether they will be issued in registered or bearer form or both;
- any special U.S. Federal income tax considerations;
- their currency or currency unit;
- whether they will be convertible into other debt or equity securities;
- whether they will be issued in the form of one or more temporary or
permanent global securities and, if so, the identity of the depositary
for the global securities;
- any information about warrants to purchase them; and
- any other specific terms not inconsistent with the indenture.
The debt securities may provide that less than their entire principal
amount will be paid if the maturity of the debt securities is accelerated,
that they will bear no interest or that they will bear interest at a rate that
at the time of the issuance of the debt securities is below market rates. All
of these types of debt securities are referred to as "original issue discount
securities." Special U. S. Federal income tax, accounting and other
considerations apply to original issue discount securities and will be
described in any prospectus supplement relating to original issue discount
securities.
Denominations, registration, transfer and payment
Unless otherwise provided in a prospectus supplement, we will issue the
debt securities in registered form without coupons or in the form of one or
more global securities, as described below under "Global Securities." Unless
otherwise provided in a prospectus supplement, we will issue registered
securities denominated in U.S. dollars only in denominations of $1,000 or any
integral multiple of $1,000. We will issue global securities in a denomination
equal to the total principal amount of outstanding debt securities of the
series represented by the global security. We will describe the denomination
of debt securities denominated in a foreign or composite currency in a
prospectus supplement.
You may present registered securities for registration or transfer at the
office of the registrar or at the office of any transfer agent designated by
us. We have initially appointed the trustee as registrar. Although we do not
charge a fee for transfers or exchanges of debt securities, we may require you
to pay any tax or government-imposed charge on a transfer or exchange of debt
securities.
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Unless otherwise provided in a prospectus supplement, we will pay
principal and any interest on registered securities by check mailed to the
address of each holder as it appears in the register. We will pay interest to
the person in whose name the debt security is registered at the close of
business on the day or days specified by us. The trustee's principal office in
the City of New York will initially be designated as our sole paying agent for
payments on registered securities.
Global securities
The debt securities of a series may be represented by one or more global
certificates. A global certificate representing debt securities will be
deposited with, or on behalf of, The Depository Trust Company or a successor
depository appointed by us and registered in the name of the depository or its
nominee. The information relating to DTC below was provided to us by DTC.
DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing corporation"
within the meaning of the New York Uniform Commercial Code, and a "clearing
agency" registered pursuant to the provisions of Section 17A of the Exchange
Act. DTC holds securities that its participants deposit with DTC. DTC also
facilitates the settlement among participants of securities transactions, such
as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in participants' accounts, thereby eliminating
the need for physical movement of securities certificates. Direct participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and other organizations. DTC is owned by a number of its direct
participants and by the New York Stock Exchange, Inc., the American Stock
Exchange, Inc. and the National Association of Securities Dealers, Inc. Access
to the DTC system is also available to others such as securities brokers and
dealers, banks and trust companies that clear through or maintain a custodial
relationship with a direct participant, either directly or indirectly. The
rules applicable to DTC and its participants are on file with the SEC.
Purchases of debt securities represented by global certificates under the
DTC system must be made by or through direct participants, which will receive
a credit for the debt securities on DTC's records. The ownership interest of
each beneficial owner or actual purchaser of each debt security is in turn to
be recorded on the direct and indirect participants' records. Beneficial
owners will not receive written confirmation from DTC of their purchase, but
beneficial owners are expected to receive written confirmations providing
details of the transaction, as well as periodic statements of their holdings,
from the direct or indirect participant through which the beneficial owner
entered into the transaction. Transfers of ownership interests in the debt
securities are to be accomplished by entries made on the books of participants
acting on behalf of beneficial owners. Beneficial owners will not receive
certificates representing their ownership interests in debt securities, except
in the event that use of the book-entry system for the debt securities is
discontinued.
The laws of some states require that purchasers of securities take
physical delivery of the securities in definitive form. Such laws may impair a
holder's ability to transfer beneficial interests in debt securities
represented by global certificates.
So long as the depository for debt securities represented by global
certificates, or its nominee, is the registered owner of the global
certificates, the depository or its nominee, as the case may be, will be
considered the sole owner or holder of those securities represented by the
global certificates for all purposes under the indenture. Except as provided
below, beneficial owners of debt securities represented by global certificates
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will not be entitled to have debt securities represented by the global
certificates registered in their names, will not receive or be entitled to
receive physical delivery of debt securities in definitive form and will not
be considered the owners or holders thereof under the indenture.
To facilitate subsequent transfers of ownership, all debt securities
deposited by participants with DTC are registered in the name of DTC's
partnership nominee, Cede & Co. The deposit of debt securities with DTC and
their registration in the name of Cede & Co. effect no change in beneficial
ownership. DTC has no knowledge of the actual beneficial owners of the debt
securities; DTC's records reflect only the identity of the direct participants
to whose accounts the debt securities are credited, which may or may not be
the beneficial owners. The participants will remain responsible for keeping
account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to direct
participants, by direct participants to indirect participants, and by direct
participants and indirect participants to beneficial owners will be governed
by arrangements among them, subject to any statutory or regulatory
requirements that may be in effect from time to time.
Neither DTC nor Cede & Co. will consent or vote with respect to debt
securities. Under its usual procedures, DTC will mail an omnibus proxy to us
as soon as possible after the record date. The omnibus proxy assigns Cede &
Co.'s consenting or voting rights to those direct participants to whose
accounts the debt securities are credited on the record date and who are
identified in a listing attached to the omnibus proxy.
Payments of amounts due on debt securities represented by the global
certificates registered in the name of the depository or its nominee will be
made by us through the trustee under the indenture or a paying agent, which
may also be the trustee under the indenture, to the depository or its nominee,
as the case may be, as the registered owner of the debt securities represented
by the global certificates. None of us, the trustee or the paying agent will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests in debt
securities represented by global certificates or for maintaining, supervising
or reviewing any records relating to those beneficial ownership interests.
Principal and interest payments on the securities will be made to Cede &
Co., as nominee of DTC. DTC's practice is to credit direct participants'
accounts, upon DTC's receipt of funds and corresponding detail information
from us or our paying agent, on the payable date in accordance with their
respective holdings shown on DTC's records. Payments by participants to
beneficial owners will be governed by standing instructions and customary
practices, as is the case with securities held for the accounts of customers
in bearer form or registered in "street name," and will be the responsibility
of that participant and not DTC, any paying agent or us, subject to any
statutory or regulatory requirements as may be in effect from time to time.
Payment of principal and interest to Cede & Co. is the responsibility of us or
our paying agent, disbursement of those payments to direct participants will
be the responsibility of DTC, and disbursement of those payments to the
beneficial owners will be the responsibility of direct and indirect
participants.
DTC may discontinue providing its services as securities depository with
respect to the securities at any time by giving reasonable notice to us or our
paying agent. Under those circumstances, if a successor securities depository
is not obtained, security certificates are required to be printed and
delivered.
We may decide to discontinue use of the system of book-entry transfers
through DTC (or a successor securities depository). In that event, security
certificates will be printed and delivered.
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Limitations on liens
We have agreed not to, and not to permit any Restricted Subsidiary (as
defined below) to, incur a lien to secure indebtedness for borrowed money on a
Principal Property (as defined below) or on any shares of stock or
indebtedness of a Restricted Subsidiary without equally and ratably securing
the debt securities unless:
(1) the lien existed on March 17, 1997 or at the time the Restricted
Subsidiary became a Restricted Subsidiary;
(2) the lien existed at the time we or a Restricted Subsidiary acquired
the Principal Property or the stock or indebtedness;
(3) the lien secures indebtedness incurred to finance all or some of the
purchase price of the Principal Property or the stock or
indebtedness;
(4) the lien secures indebtedness incurred to finance development,
operation, construction, alteration, repair or improvement costs;
(5) the lien secures indebtedness of a Restricted Subsidiary owing to us
or another Restricted Subsidiary;
(6) the lien was incurred in connection with government contracts,
including an assignment of money due or to come due under those
contracts;
(7) the lien arose in connection with legal proceedings or in the
ordinary course of business and not in connection with borrowing
money;
(8) the lien secures tax-exempt obligations issued by a domestic
governmental entity to finance the cost of acquiring or constructing
the pledged property;
(9) the lien extends, renews or replaces in whole or in part a permitted
lien; or
(10) our total indebtedness secured by liens on Principal Properties plus
all of our and our Restricted Subsidiaries' Attributable Debt for
sale and leaseback transactions entered into after March 17, 1997
does not exceed 10% of our consolidated net tangible net assets.
Any indebtedness secured by a permitted lien is excluded in determining our
total secured indebtedness.
A Restricted Subsidiary is a subsidiary:
(1) substantially all of the property of which is located in the
continental United States;
(2) which owns or leases a Principal Property, defined as an important
manufacturing plant or other facility located in the continental
United States and not financed by tax-exempt industrial development
bonds; and
(3) in which our direct or indirect investment exceeds 1% of our total
consolidated assets.
Attributable Debt means:
(1) the greater of the fair value of the real property subject to a sale
and leaseback transaction or the net proceeds to the lender or
investor from selling that real property; multiplied by
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(2) the unexpired initial term of the lease of that real property
divided by the full initial term of that lease.
Limitations on sale and leaseback transactions
We have agreed not to, and not to permit any Restricted Subsidiary to,
enter into a sale and leaseback transaction covering any Principal Property
unless:
(1) the lease has a term, including renewals, of three years or less;
(2) we or the Restricted Subsidiary could create a lien on the Principal
Property to secure indebtedness at least equal in amount to the
Attributable Debt for the lease; or
(3) within 120 days after the transaction, we retire indebtedness which
has a remaining maturity of more than one year or which is
extendible for more than one year in an amount equal to the greater
of the net proceeds of the sale or the fair market value of the
Principal Property.
Merger, consolidation or sale
We may merge or consolidate with or into another corporation, or transfer
all or substantially all of our properties and assets to another person
without the consent of the holders of any of the debt securities outstanding,
if:
(1) either we are the surviving corporation or the surviving corporation
assumes all of our obligations under the debt securities and the
indenture; and
(2) immediately after the transaction no default exists.
Events of default
When we use the term "event of default" in the indenture, here are
examples of what we mean:
- we fail to pay the principal on any debt security when due;
- we fail for 30 days to pay interest when due on any debt security;
- we fail to comply with any other covenant in the debt securities and
this failure continues for 60 days after we receive written notice of
it;
- we fail to pay the principal when due of any of our other indebtedness
exceeding $10,000,000; or
- specified events occur relating to our bankruptcy, insolvency or
reorganization.
The supplemental indenture or the form of security for a particular
series of debt securities may include additional events of default or changes
to the events of default described above. You should refer to the prospectus
supplement for the events of default relating to a particular series of debt
securities. Except as described above, a default under our other indebtedness
will not be a default under the indenture and a default under one series of
debt securities will not necessarily be a default under another series.
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If an event of default for debt securities of any series occurs and is
continuing, the trustee or the holders of at least 25% in principal amount of
all of the debt securities of that series outstanding may require us to
immediately repay all of the principal and interest due on the debt securities
of that series. If the debt securities are original issue discount securities
or indexed securities, then the amount that will become due and payable on
acceleration will be the portion of the principal amount of the debt
securities that may be specified in their terms. The holders of a majority in
principal amount of all of the debt securities of that series may rescind this
accelerated payment requirement, if the rescission would not conflict with any
judgment or decree by a court and if all existing events of default have been
cured or waived. The trustee is required to give notice to the holders of debt
securities within 90 days of a default under the indenture, except that the
trustee may withhold notice to the holders of any series of debt securities,
except for a payment default, if the trustee considers the withholding to be
in the interests of the holders.
The indenture provides that the holders of the debt securities of any
series are not permitted to institute any proceedings, judicial or otherwise,
with respect to the indenture or for any remedy under the indenture unless the
trustee fails to act for a period of 60 days after it has received a written
request from the holders of at least 25% in principal amount of the
outstanding debt securities of the series, as well as an offer to the trustee
of reasonable indemnity against any costs or liabilities it may incur. This
provision will not prevent, however, any holder of debt securities from
instituting suit to enforce payment on the debt securities on or after their
due dates.
Subject to provisions in the indenture relating to its duties in case of
default, the trustee is under no obligation to exercise any of its rights or
powers under the indenture at the request or direction of any holders of any
series of debt securities, unless the holders have offered the trustee
reasonable security or indemnity. The holders of a majority in principal
amount of the outstanding debt securities of any series will 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. However, the trustee may refuse to follow any direction which is in
conflict with any law or the indenture, which may involve the trustee in
personal liability or which may be unduly prejudicial to the holders of debt
securities of the series not joining in giving that direction.
Within 120 days after the end of each year, we must deliver a certificate
to the trustee, signed by one of several specified officers, stating whether
or not the officer has knowledge of any default under the indenture.
We will provide holders with any required notices by first-class mail to
the addresses of the holders as they appear in the security register.
The holders of a majority in principal amount of the debt securities may
generally waive an existing default and its consequences, except a default in
paying principal or interest.
Modification of the indenture
The indenture may be amended without the consent of any holder of debt
securities:
- to secure the debt securities;
- to permit a successor to assume our obligations under the indenture;
- to add to our covenants and events of default;
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- to cure any ambiguity, defect or inconsistency;
- to establish the form or terms of any series of debt securities; and
- to provide for a successor trustee.
The indenture may be amended with the written consent of the holders of
at least a majority in principal amount of the debt securities of the series
affected by the amendment. Holders of at least a majority in principal amount
of the debt securities may waive our compliance with any provision of the
indenture or the debt securities by giving notice to the trustee.
However, no amendment or waiver which
- educes the principal of or extends the fixed maturity of any debt
security;
- reduces the rate of or extends the time for payment of interest on any
debt security;
- reduces the amount payable on redemption of any debt security;
- impairs the right of any holder of debt securities to sue for payment;
- impairs any right of repayment at the option of the holders of debt
securities;
- reduces the amount of debt securities whose holders must consent to an
amendment or waiver; or
- waives a default in the payment of the principal or any premium or
interest on any debt security;
will be effective against any holder without the holder's consent. The
trustee may call a meeting in its discretion or upon request by us or the
holders of at least 10% of the principal amount of the debt securities
outstanding of that series by giving notice to the holders.
Defeasance and discharge
When we use the term "defeasance," we mean discharge from all of our
obligations under the indenture. Unless otherwise provided in a prospectus
supplement, we may deposit with the trustee sufficient money or government
securities to pay principal and any interest on the debt securities to
redemption or maturity. If our obligations on all the debt securities of a
series are defeased, the trustee, at our request, will release its rights and
interests in any security we have issued. We are required to furnish an
opinion of counsel to the effect that the proposed deposit and defeasance will
not have any effect on the holders for U.S. Federal income tax purposes.
Unless otherwise provided in a prospectus supplement, we may also elect
"covenant defeasance," by which we mean discharge from some of the covenants
and restrictions which apply to us under the indenture. We would still have to
deposit with the trustee sufficient money or government securities to pay
principal and any interest on the debt securities to redemption or maturity.
We would also have to furnish an opinion of counsel to the effect that the
proposed deposit and covenant defeasance will not have any effect on the
holders for U.S. Federal income tax purposes.
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DESCRIPTION OF COMMON STOCK
Our certificate of incorporation authorizes us to issue 300,000,000
shares of common stock, par value $1.00 per share. As of October 8, 1999,
there were 75,847,362 shares of common stock outstanding.
We have provided a brief summary of the general terms of the common stock
below. Our restated certificate of incorporation has been incorporated by
reference as an exhibit to the registration statement for these securities
that we have filed with the SEC. You should read the restated certificate of
incorporation for the provisions that are important to you.
Our common stockholders may receive dividends of cash, securities or
property if our Board of Directors declares these dividends. Dividends on our
common stock are also subject to any preferred stockholders' rights to receive
dividends. In general, our common stockholders are entitled to one vote per
share on all matters which require a vote of the common stockholders. If we
voluntarily or involuntarily liquidate, or dissolve or wind up our business,
any preferred stockholders would be paid first, then our common stockholders
would share equally, depending on the number of shares of common stock they
hold, in our remaining assets available for distribution. We cannot redeem our
common stock, and our common stockholders do not have subscription, conversion
or preemptive rights. On May 27, 1988, preferred share purchase rights were
declared as a distribution on all of our shares of common stock outstanding as
of June 6, 1988, and on each share of common stock issued after that date. Any
share of common stock issued pursuant to this registration statement will have
a preferred stock purchase right attached to it. The preferred stock purchase
rights are described in the amended and restated rights agreement, dated as of
May 11, 1998, which we have incorporated by reference as an exhibit to the
registration statement for these securities that we have filed with the SEC.
The transfer agent and registrar for our common stock is Fifth Third
Bank.
DESCRIPTION OF PREFERRED STOCK
This prospectus describes the general terms and provisions of our
preferred stock. When we offer to sell a particular series of preferred stock,
we will describe the specific terms of the securities in a supplement to this
prospectus. The prospectus supplement will also indicate whether the general
terms and provisions described in this prospectus apply to the particular
series of preferred stock being offered. The preferred stock will be issued
under a certificate of designations relating to each series of preferred
stock, and is also subject to our restated certificate of incorporation.
We have summarized the material portions of the certificate of
designations below. The certificate of designations will be filed with the SEC
in connection with an offering of preferred stock. You should read our
certificate of incorporation and the certificate of designations for the
provisions that are important to you.
Our certificate of incorporation authorizes us to issue 5,000,000 shares
of preferred stock, par value $1.00 per share. Our Board is authorized to
designate any series of preferred stock and the powers, preferences and rights
of that series of preferred stock without further shareholder action. As of
the date of this prospectus, no shares of our preferred stock are outstanding.
Our Board is authorized to determine or fix the following terms for each
series of preferred stock, which will be described in a prospectus supplement:
- the number of shares and their designation;
- dividend rights;
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- whether the shares will be redeemable and the terms of the redemption;
- whether and upon what terms the shares will have a sinking fund;
- whether the shares will be convertible into or exchangeable for any
other securities and the terms of the conversion or exchange;
- the holders' voting rights, if any;
- any restrictions on our ability to issue additional preferred stock;
- the rights of the holders upon our dissolution, or upon the
distribution of our assets; and
- any other preferences, rights, qualifications, limitations or
restrictions;
If we purchase, redeem or convert shares of preferred stock, we will
retire and cancel them and restore them to the status of authorized but
unissued shares of preferred stock. These shares will not be part of any
particular series of preferred stock and we may reissue them.
When we issue shares of preferred stock, they will be fully paid and
nonassessable. Unless the prospectus supplement provides otherwise:
- each series of preferred stock will rank equally in all respects with
each other outstanding series of preferred stock;
- the preferred stock will have no preemptive rights to subscribe for
any additional securities which we may issue in the future; and
- even if there are any sinking fund installments due on a particular
series of preferred stock, we will not be restricted from purchasing,
redeeming or converting shares of preferred stock.
Dividends
The holders of preferred stock will be entitled to receive cash dividends
if our Board declares dividends out of funds we can legally use for payment.
The prospectus supplement will set forth the dividend rates and the dates on
which we will pay dividends and whether the dividends will be cumulative or
non-cumulative. The rates may be fixed or variable or both. If the dividend
rate is variable, the formula used to determine the dividend rate will be
described in the prospectus supplement. We will pay dividends to the holders
of record as they appear on our register on the record dates fixed by our
Board.
Our Board will not declare and pay a dividend on any series of preferred
stock unless full dividends for all series of preferred stock ranking equal as
to dividends have been declared and paid or sufficient funds are set aside
for payment. If dividends are not paid in full, we will declare any dividends
pro rata among each series of preferred stock and any other series of
preferred stock ranking equal as to dividends. A "pro rata" declaration means
that the dividends we declare per share on each series of preferred stock will
bear the same relationship to each other that the full accrued dividends per
share on each series of the preferred stock bear to each other.
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Unless all dividends on a series of preferred stock have been paid in
full, we will not declare or pay any dividends or set aside sums for payment
of dividends or distributions on any common stock or on any class of security
ranking junior to that series of preferred stock, except for dividends or
distributions paid for with securities ranking junior to that series of
preferred stock. We will also not redeem, purchase or otherwise acquire any
securities ranking junior to that series of preferred stock as to dividends or
distributions upon liquidation, except by conversion into or exchange for
stock junior to that series of preferred stock.
Liquidation
If we voluntarily or involuntarily liquidate, dissolve or wind up our
business, holders of any series of preferred stock will be entitled to receive
the liquidation preference per share specified in the prospectus supplement
and all accrued and unpaid dividends. We will pay these amounts to the holders
of each series of preferred stock and all amounts owing on any other series
of preferred stock ranking equal as to distributions upon liquidation. These
payments will be made out of our assets available for distribution to
shareholders before any distribution is made to holders of our common stock or
any other class of our stock ranking junior to that series of preferred stock
as to dividends or distributions upon liquidation.
If there are insufficient assets to pay the liquidation preferences for
all equally ranked series of preferred stock in full, then we will distribute
the remaining assets pro rata among all series of equally ranked preferred
stock based on the aggregate liquidation preference for all outstanding shares
for each series. A "pro rata" distribution means that the distribution we pay
per share on each series of preferred stock ranking equal as to distributions
upon liquidation will bear the same relationship to each other that the full
distributable amounts per share to which the holders are respectively entitled
bear to each other. After we pay the full amount of the liquidation preference
to which they are entitled, the holders of shares of a series of preferred
stock will not be entitled to participate in any further distribution of our
assets.
Voting
No series of preferred stock will be entitled to vote except as required
by applicable law or as specifically approved by us and described in the
prospectus supplement, with regard to matters submitted to a general vote of
our stockholders.
Transfer agent and registrar
The prospectus supplement for each series of preferred stock will name
the transfer agent and registrar.
DESCRIPTION OF DEPOSITARY SHARES
This prospectus describes the general terms and provisions of our
depositary shares. When we offer to sell depositary shares, we will describe
the specific terms of the securities in a supplement to this prospectus. The
prospectus supplement will also indicate whether the general terms and
provisions described in this prospectus apply to the depositary shares being
offered.
We have summarized the material portions of the deposit agreement below.
The deposit agreement will be filed with the SEC in connection with an
offering of depositary shares. You should read the deposit agreement for the
provisions that are important to you.
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We may offer fractional interests in preferred stock, rather than full
shares of preferred stock. If we do, we will provide for a depositary to issue
to the public receipts for depositary shares, each of which will represent
ownership of and entitlement to all rights and preferences of a fractional
interest in a share of preferred stock of a specified series. These rights
include dividend, voting, redemption and liquidation rights. The applicable
fraction will be specified in a prospectus supplement. The shares of preferred
stock represented by the depositary shares will be deposited with a depositary
named in a prospectus supplement, under a deposit agreement among us and the
depositary and the holders of the depositary receipts.
The depositary shares will be evidenced by depositary receipts issued
under the deposit agreement. The depositary will be the transfer agent,
registrar and dividend disbursing agent for the depositary shares. Holders of
depositary receipts agree to be bound by the deposit agreement, which requires
holders to file proof of residence and pay charges.
Dividends
The depositary will distribute all cash dividends or other cash
distributions received to the record holders of depositary receipts in
proportion to the number of depositary shares owned by them on the relevant
record date. The record date will be the same date as the record date we fix
for the applicable series of preferred stock.
If we make a non-cash distribution, the depositary will distribute
property to the holders of depositary receipts, unless the depositary
determines, after consultation with us, that it is not feasible to make this
distribution. If this occurs, the depositary may, with our approval, adopt any
other method for the distribution as it deems appropriate, including the sale
of the property and distribution of the net proceeds from the sale.
Liquidation preference
If we voluntarily or involuntarily liquidate, dissolve or wind up our
business, the holders of each depositary share will receive the fraction of
the liquidation preference for each share of the applicable series of
preferred stock.
Redemption
If the series of preferred stock underlying the depositary shares is
redeemed, the depositary shares will be redeemed from the redemption proceeds
of the preferred stock held by the depositary. Whenever we redeem any
preferred stock held by the depositary, the depositary will redeem on the same
redemption date the number of depositary shares representing the preferred
stock being redeemed. The depositary will mail the notice of redemption
between 30 and 60 days prior to the date fixed for redemption to the record
holders of the depositary receipts. If less than all the depositary shares
are redeemed, the depositary shares redeemed will be selected by lot or pro
rata as determined by the depositary.
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Voting
The depositary will promptly mail information contained in any notice of
meeting it receives from us to the record holders of the depositary receipts.
Each record holder of depositary receipts will be entitled to instruct the
depositary as to its exercise of its voting rights pertaining to the number of
shares of preferred stock represented by its depositary shares. The depositary
will try, if practical, to vote the preferred stock underlying the depositary
shares according to the instructions received. We will agree to take all
action which the depositary may find necessary in order to enable the
depositary to vote the preferred stock in that manner. The depositary will not
vote any of the preferred stock for which it does not receive specific
instructions from the holders of depositary receipts.
Withdrawal of preferred stock
If a holder surrenders depositary receipts at the principal office of the
depositary and pays any unpaid amount due to the depositary, the holder will
be entitled to receive the number of whole shares of preferred stock and all
money and other property represented by the depositary shares. Partial shares
of preferred stock will not be issued. If the holder delivers depositary
receipts evidencing a number of depositary shares that represent more than a
whole number of shares of preferred stock, the depositary will issue a new
depositary receipt evidencing the excess number of depositary shares to that
holder. Holders of preferred stock received in exchange for depositary shares
will no longer be entitled to deposit those shares under the deposit agreement
or to receive depositary receipts.
Amendment and termination of deposit agreement
The form of depositary receipt evidencing the depositary shares and any
provision of the deposit agreement may at any time and from time to time be
amended by agreement between us and the depositary. However, any amendment
which materially and adversely alters the rights of the holders of depositary
shares, other than any change in fees, will not be effective unless approved
by at least a majority of the depositary shares then outstanding. An amendment
may not impair the right of any owner of any depositary shares to surrender
its depositary receipt with instructions to the depositary in exchange for
preferred stock, money and property, except in order to comply with mandatory
provisions of applicable law. The deposit agreement may be terminated by us or
the depositary only if:
- all outstanding depositary shares have been redeemed; or
- there has been a final distribution to the holders of preferred stock
in connection with the liquidation, dissolution or winding up of our
business, and the distribution has been made to all the holders of
depositary shares.
Charges of depositary
We will pay all transfer and other taxes and governmental charges
attributable solely to the depositary arrangements. We will pay the
depositary's charges for the initial deposit of the preferred stock and the
initial issuance of the depositary shares, any redemption of the preferred
stock and all exchanges for preferred stock. Holders of depositary receipts
will pay transfer, income and other taxes and governmental charges and other
charges stated in the deposit agreement to be for their accounts. In some
circumstances, the depositary may refuse to transfer depositary shares, may
withhold dividends and distributions and may sell the depositary shares if
those charges are not paid.
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Obligations of depositary
The depositary will forward to the holders of depositary receipts all
reports and communications from us which are delivered to it and which we are
required to furnish to the holders of the preferred stock. In addition, the
depositary will make available for inspection by holders of depositary
receipts at its principal office, and at such other places as it may from time
to time deem advisable, any reports and communications received from us.
We will not assume, and the depositary will not assume, any obligation or
any liability under the deposit agreement to holders of depositary receipts
other than for gross negligence or willful misconduct. We will not be liable,
and the depositary will not be liable, if we are prevented or delayed by law
or any circumstance beyond our control in performing our obligations under the
deposit agreement. Our obligations and the depositary's obligations under the
deposit agreement will be limited to the performance in good faith of our and
their duties. We and the depositary will not be obligated to prosecute or
defend any legal proceeding in respect of any depositary shares or preferred
stock unless we and/or the depositary receives satisfactory indemnity. We and
the depositary may rely on written advice of our counsel or accountants, on
information provided by holders of depositary receipts or other persons
believed in good faith to be competent to give this information and on
documents believed to be genuine and to have been signed or presented by the
proper party or parties.
Resignation and removal of depositary
The depositary may resign at any time by delivering to us notice of its
election to do so. We may also at any time remove the depositary. The
resignation or removal will take effect after a successor depositary is
appointed and has accepted the appointment. We must appoint a successor within
60 days after delivery of the notice for resignation or removal and the
successor depositary must be a bank or trust company having its principal
office in the United States and having a combined capital and surplus of at
least $50,000,000.
U.S. Federal income tax consequences
Owners of the depositary shares will be treated for U.S. Federal income
tax purposes as if they were owners of the preferred stock underlying the
depositary shares. Accordingly, the owners will be entitled to take into
account for U.S. Federal income tax purposes income and deductions to which
they would be entitled if they were holders of the preferred stock. In
addition:
- no gain or loss will be recognized for U.S. Federal income tax
purposes upon the receipt of preferred stock in exchange for
depositary shares;
- the tax basis of each share of preferred stock to an exchanging owner
of depositary shares will, when exchanged, be the same as the
aggregate tax basis of the depositary shares being exchanged; and
- the holding period for preferred stock in the hands of an exchanging
owner of depositary shares will include the period during which that
person owned those depositary shares.
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DESCRIPTION OF WARRANTS
This prospectus describes the general terms and provisions of the
warrants. When we offer to sell warrants, we will describe the specific terms
of the warrants and warrant agreement in a supplement to this prospectus. The
prospectus supplement will also indicate whether the terms and provisions
described in this prospectus apply to the warrants being offered.
We have summarized the material portions of the warrant agreement below.
The warrant agreement will be filed with the SEC in connection with an
offering of warrants. You should read the warrant agreement for the provisions
that are important to you.
We may issue warrants for the purchase of our debt securities, preferred
stock or common stock. Warrants may be issued alone or together with debt
securities, preferred stock or common stock offered by any prospectus
supplement and may be attached to or separate from those securities. Each
series of warrants will be issued under a separate warrant agreement to be
entered into between us and a bank or trust company, as warrant agent. The
warrant agent will act solely as our agent in connection with the warrants and
will not assume any obligation or relationship of agency or trust for or with
any holders or beneficial owners of warrants.
Debt warrants
The prospectus supplement relating to a particular issue of warrants to
purchase debt securities will describe the terms of those debt warrants,
including the following:
- their title;
- their offering price;
- their aggregate number;
- the designation and terms of the debt securities that can be purchased
when they are exercised;
- the designation and terms of the debt securities that are issued with
the warrants and the number of warrants issued with each debt
security;
- the date when they and any debt securities issued will be separately
transferable;
- the principal amount of debt securities that can be purchased when
they are exercised and the purchase price;
- the date on which the right to exercise the warrants begins and the
date on which the right expires;
- the minimum or maximum amount of warrants that may be exercised at any
one time;
- whether they and the debt securities that may be issued when they are
exercised will be issued in registered or bearer form;
- information about book-entry procedures;
- the currency or currency units in which the offering price and the
exercise price are payable;
- a discussion of material U. S. Federal income tax considerations;
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- the antidilution provisions; and
- the redemption or call provisions.
Stock warrants
The prospectus supplement relating to particular issue of warrants to
issue common stock or preferred stock will describe the terms of those stock
warrants, including the following:
- their title;
- their offering price;
- their aggregate number;
- the designation and terms of the common stock or preferred stock that
can be purchased when they are exercised;
- the designation and terms of the common stock or preferred stock that
are issued with the warrants and the number of warrants issued with
each share of common stock or preferred stock;
- the date when they and any common stock or preferred stock issued will
be separately transferable;
- the number of shares of common stock or preferred stock that can be
purchased when they are exercised and the purchase price;
- the date on which the right to exercise the warrants begins and the
date on which the right expires;
- the minimum or maximum amount of warrants that may be exercised at any
one time;
- the currency or currency units in which the offering price and the
exercise price are payable;
- a discussion of material U.S. Federal income tax considerations;
- the antidilution provisions; and
- the redemption or call provisions.
PLAN OF DISTRIBUTION
We may sell the securities in any one or more of the following ways:
- directly to investors;
- to investors through agents or dealers;
- through underwriting syndicates led by one or more managing
underwriters; or
- through one or more underwriters acting alone.
For each offering of securities, the prospectus supplement will describe the
plan of distribution.
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If we use underwriters in the sale, the obligations of the underwriters
to purchase the securities will be subject to certain conditions. The
underwriters will be obligated to purchase all the securities offered, if any
are purchased. The underwriters will acquire the securities for their own
account. The underwriters may resell the securities in one or more
transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. The underwriters
may change from time to time any initial public offering price and any
discounts or concessions allowed or re-allowed or paid to dealers.
We may use agents in the sale of securities. Unless otherwise indicated
in a prospectus supplement, the agents will be acting on a best efforts basis
for the period of their appointment.
If we use a dealer in the sale of the securities, we will sell the
securities to the dealer as principal. The dealer may then resell the
securities to the public at varying prices it determines at the time of
resale.
We may also sell the securities in connection with a remarketing upon
their purchase, in accordance with a redemption or repayment pursuant to their
terms, or otherwise, by a remarketing firm acting as principals for their own
accounts or as our agents. Remarketing firms may be deemed to be underwriters
in connection with the securities they remarket.
We may authorize underwriters, dealers or agents to solicit offers by
certain institutions to purchase the securities under delayed delivery
contracts providing for payment and delivery at a future date and on terms
described in the prospectus supplement. This type of contract may be made
only with institutions that we specifically approve. These institutions
include banks, insurance companies, pension funds, investment companies,
educational and charitable institutions, and other institutions. The
underwriters, dealers or agents will not be responsible for the validity or
performance of these contracts.
We will identify any underwriters, dealers or agents and describe their
compensation, including any discounts or commissions, in a prospectus
supplement. Underwriters, dealers and agents that participate in the
distribution of the offered securities may be underwriters as defined in the
Securities Act of 1933, and any discounts or commissions received by them from
us and any profit on the resale of the securities by them may be treated as
underwriting discounts and commissions.
We may agree to indemnify the underwriters, dealers and agents against
certain civil liabilities, including liabilities under the Securities Act of
1933, or to contribute to payments which the underwriters, dealers or agents
may be required to make. Underwriters, dealers or agents may engage in
transactions with, or perform services for, us in the ordinary course of their
business.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements and schedule included in our Annual Report on Form 10-K
for the year ended December 31, 1998, as set forth in their report, which is
incorporated by reference in this prospectus. Our consolidated financial
statements and schedule are incorporated by reference herein in reliance on
Ernst & Young LLP's report, given on their authority as experts in accounting
and auditing.
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The financial statements and schedules of The Standard Products Company
incorporated by reference in this prospectus have been audited by Arthur
Andersen LLP, independent public accountants, as indicated in their reports
with respect thereto, and are included herein in reliance upon the authority
of that firm as experts in giving these reports.
LEGAL MATTERS
The validity of the securities we are offering will be passed upon for us
by Richard D. Teeple, Esq., our General Counsel. As of October 8, 1999, Mr.
Teeple owned 45,511 shares, and held options to acquire 30,100 additional
shares, of our common stock. Some legal matters will be passed upon for the
purchasers by Mayer, Brown & Platt, Chicago, Illinois.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated expenses in connection with
the issuance and distribution of the securities registered hereby, all of
which will be paid by the Registrant:
SEC registration fee. . . . . . . . . . . . . . . . . . . . . $333,600
*Printing and duplicating expenses . . . . . . . . . . . . . 100,000
*Legal fees and expenses . . . . . . . . . . . . . . . . . . 100,000
*Blue Sky fees and expenses. . . . . . . . . . . . . . . . . 15,000
*Accounting fees and expenses. . . . . . . . . . . . . . . . 75,000
*Trustee's and transfer agent's fees and expenses. . . . . . 75,000
*Rating agency fees. . . . . . . . . . . . . . . . . . . . . 100,000
*Miscellaneous expenses. . . . . . . . . . . . . . . . . . . 16,400
-------
*Total . . . . . . . . . . . . . . . . . . . . . . . . . . . $815,000
=======
*Estimated
Item 15. Indemnification of Directors and Officers.
The form of Underwriting Agreement filed as an exhibit hereto and hereby
incorporated herein by reference contains certain provisions relating to
indemnification of the Registrant's directors and officers.
Section 145 of the Delaware General Corporation Law expressly permits
indemnification of officers, directors and employees of Delaware corporations
against claims, judgements and expenses arising in connection with legal or
administrative proceedings or otherwise, including amounts paid in settlement
of a claim or litigation, if the officer, director or employee acted in good
faith and in a manner he or she believed to be in or not opposed to the best
interests of the corporation.
The Registrant's Bylaws provide that any officer, director or employee
who is threatened to be or is made a party to any action, by reason of the
fact that he or she is or was an officer, director or employee, shall be
indemnified against expenses (including attorneys' fees) incurred by him or
her in connection with the action to the fullest extent provided under Section
145 of the Delaware General Corporation Law. The Registrant maintains an
insurance policy pursuant to which the Registrant is to be reimbursed (subject
to certain deductibles) for amounts it may be required or permitted by law to
pay to indemnify officers, directors or employees.
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Item 16. Exhibits and Financial Statement Schedules.
See the Exhibit Index, which is hereby incorporated herein by reference.
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
notwithstanding the foregoing, any increase or decrease in the
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent
no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
Provided, however, that paragraphs (a)(i) and (a)(ii) do
not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by
the Registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
26
<PAGE>
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the provisions set forth or described in Item 15 of
this Registration Statement, or otherwise, the Registrant has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. If a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with
the securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act of 1933 and
will be governed by the final adjudication of such issue.
27
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Findlay, State of Ohio on the 15 day
of October, 1999.
COOPER TIRE & RUBBER COMPANY
By:
Name:
Title:
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Patrick W. Rooney
- ------------------------
PATRICK W. ROONEY* Chairman of the Board, October 15, 1999
Chief Executive Officer
and Director
(Principal Executive Officer)
/s/ Thomas A. Dattilo
- ------------------------
THOMAS A. DATTILO* President, Chief Operating October 15, 1999
Officer and Director
/s/ John Fahl
- ------------------------
JOHN FAHL* Vice President and Director October 15, 1999
/s/ Philip G. Weaver
- ------------------------
PHILIP G. WEAVER* Vice President and Chief October 15, 1999
Financial Officer
(Principal Financial Officer)
/s/ Eileen B. White
- ------------------------
EILEEN B. WHITE* Corporate Controller October 15, 1999
(Principal Accounting Officer)
/s/ Arthur H. Aronson
- ------------------------
ARTHUR H. ARONSON* Director October 15, 1999
/s/ Edsel D. Dunford
- ------------------------
EDSEL D. DUNFORD* Director October 15, 1999
/s/ Deborah M. Fretz
- ------------------------
DEBORAH M. FRETZ* Director October 15, 1999
/s/ Dennis J. Gormley
- ------------------------
DENNIS J. GORMLEY* Director October 15, 1999
28
<PAGE>
/s/ John F. Meier
- ------------------------
JOHN F. MEIER* Director October 15, 1999
/s/ Byron O. Pond
- ------------------------
BYRON O. POND* Director October 15, 1999
/s/ John H. Shuey
- ------------------------
JOHN H. SHUEY* Director October 15, 1999
*By
--------------------------------
Attorney-in-fact
29
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Document Description
1* Form of Underwriting Agreement.
2 Agreement and Plan of Merger, dated as of July 27, 1999, by and
among Cooper Tire & Rubber Company, CTB Acquisition Company and
The Standard Products Company (incorporated by reference to
Appendix A to the proxy statement/prospectus of The Standard
Products Company and Cooper Tire & Rubber Company, dated
September 14, 1999, filed as part of Amendment No. 1 to Cooper
Tire & Rubber Company's Form S-4 Registration Statement on
September 14, 1999.
4.1 Indenture dated as of March 17, 1997 from Cooper Tire & Rubber
Company to The Chase Manhattan Bank, as Trustee.
4.2 Amended and Restated Rights Agreement dated as of May 11, 1998
between Cooper Tire & Rubber Company and The Fifth Third Bank,
as Rights Agent (incorporated by reference to Exhibit 4 to
Cooper Tire & Rubber Company's Form 8-K dated May 15, 1998)
5 Opinion of Richard D. Teeple, Esq., General Counsel of Cooper
Tire & Rubber Company as to the legality of the securities being
registered
12.1 Computation of Ratio of Earnings to Fixed Charges
12.2 Computation of Ratio of Earnings to Combined Fixed Charges and
Preferred Stock Dividends
23.1 Consent of Richard D. Teeple, Esq. (included in the opinion
filed as Exhibit 5)
23.2 Consent of Ernst & Young LLP
23.3 Consent of Arthur Andersen LLP
24 Powers of Attorney
25 Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939 of The Chase Manhattan Bank.
*To be filed by amendment.
30
<PAGE>
Exhibit 4.1
COOPER TIRE & RUBBER COMPANY
AND
THE CHASE MANHATTAN BANK, as Trustee
INDENTURE
Dated as of March 17, 1997
31
<PAGE>
CROSS REFERENCE SHEET*
Provisions of Trust Indenture Act of 1939 and Indenture dated as of March
17, 1997, between Cooper Tire & Rubber Company and The Chase Manhattan Bank,
as Trustee:
Section of the Act Section of Indenture
- ------------------ --------------------
310(a)(1), (2) and (5) 6.9, 3.3
310(a)(3) and (4) Inapplicable
310(b) 6.8 and 6.10(a), (b) and (d)
310(c) Inapplicable
311(a) 6.13(a) and (c)
311(b) 6.13(b)
311(c) Inapplicable
312(a) 4.1 and 4.2(a)
312(b) 4.2(b)
312(c) 4.2(c)
313(a) 4.4(a)
313(b)(1) Inapplicable
313(b)(2) 4.4(b)
313(c) 4.4(c)
313(d) 4.4(d)
314(a) 4.3, 3.5
314(b) Inapplicable
314(c)(1) and (2) 11.5
314(c)(3) Inapplicable
314(d) Inapplicable
314(e) 11.5
314(f) Inapplicable
315(a), (c) and (d) 6.1
315(b) 5.11
315(e) 5.12
316(a)(1) 5.9 and 5.10
316(a)(2) Not required
316(a) (last sentence) 7.4
316(b) 5.7
316(c) 7.6
317(a) 5.2
317(b) 3.4(a) and (b)
318(a) 11.7
*This Cross Reference Sheet is not part of the Indenture.
32
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Terms Defined 1
"Attributable Debt" 1
"Board of Directors" 1
"Business Day" 2
"Commission" 2
"Company" 2
"Company Notice" 2
"Component Currency" 2
"Consolidated Net Tangible Assets" 2
"Conversion Date" 2
"Corporate Trust Office" 2
"Coupon" 2
"Coupon Security" 2
"Currency Determination Agent" 2
"covenant defeasance" 2
"defaulted interest" 2
"defeasance" 2
"Depositary" 2
"Depositary Security" 3
"Dollar" 3
"Dollar Equivalent of the ECU" 3
"Dollar Equivalent of the Foreign Currency" 3
"ECU" 3
"European Communities" 3
"Event of Default" 3
"Exchange Rate Officer's Certificate" 3
"Foreign Currency" 3
"Government Obligations" 3
"Holder", "Holder of Securities", "Securityholder" 4
"Indenture" 4
"interest", 4
"Market Exchange Rate" 4
"Officers' Certificate" 4
"Official ECU Exchange Rate" 4
"Opinion of Counsel" 4
"original issue date" 4
"Original Issue Discount Security" 4
"Outstanding" 4
"Paying Agent" 5
"Person" 5
"Place of Payment" 5
"principal" 5
"Principal Property" 5
"Registered Holder" 5
"Registered Security" 5
"Responsible Officer" 5
"Restricted Subsidiary" 5
"sale and leaseback transaction" 6
"Security" or "Securities" 6
"Series" or "Series of Securities" 6
"Specified Amount" 6
"Subsidiary" 6
"Tranche" 6
"Trustee" 6
33
<PAGE>
"Trust Indenture Act of 1939" 6
"United States of America" 6
"Unregistered Security" 6
"Unrestricted Subsidiary" 6
"U.S. Person" 6
"Valuation Date" 6
"Vice President" or "vice president" 6
ARTICLE II
SECURITIES
SECTION 2.1. Forms Generally 7
SECTION 2.2. Form of Trustee's Certificate of Authentication 7
SECTION 2.3. Amount Unlimited; Issuable in Series 7
SECTION 2.4. Authentication and Delivery of Securities 9
SECTION 2.5. Execution of Securities 10
SECTION 2.6. Certificate of Authentication 11
SECTION 2.7. Denomination and Date of Securities; Payment of Interest 11
SECTION 2.8. Registration, Transfer and Exchange 13
SECTION 2.9. Mutilated, Defaced, Destroyed, Lost and Stolen Securities 14
SECTION 2.10. Cancellation of Securities, Destruction Thereof 15
SECTION 2.11. Temporary Securities 15
SECTION 2.12. Currency and Manner of Payments in Respect of Securities 16
SECTION 2.13. Compliance with Certain Laws and Regulations 19
SECTION 2.14. Securities Issuable in the Form of a Depositary Security 19
ARTICLE III
CONVENANTS OF THE ISSUER
SECTION 3.1. Payment of Principal and Interest 20
SECTION 3.2. Offices for Payment, etc. 21
SECTION 3.3. Appointment to Fill a Vacancy in Office of Trustee 21
SECTION 3.4. Paying Agents 21
SECTION 3.5. Written Statement to Trustee 22
SECTION 3.6. Corporate Existence 22
SECTION 3.7. Maintenance of Principal Properties 22
SECTION 3.8. Payment of Taxes and Other Claims 23
SECTION 3.9. Limitation upon Liens 23
SECTION 3.10. Limitation upon Sales and Leasebacks 25
SECTION 3.11. Waiver of Certain Covenants 26
ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1. Company to Furnish Trustee Information as to Names and
Addresses of Securityholders 26
SECTION 4.2. Preservation and Disclosure of Securityholders' Lists 26
SECTION 4.3. Reports by the Company 27
SECTION 4.4. Reports by the Trustee 28
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1. Event of Default Defined; Acceleration of Maturity;
Waiver of Default 29
SECTION 5.2. Collection of Indebtedness by Trustee; Trustee May
Prove Debt 31
34
<PAGE>
SECTION 5.3. Application of Proceeds 33
SECTION 5.4. Suits for Enforcement 34
SECTION 5.5. Restoration of Rights on Abandonment of Proceedings 34
SECTION 5.6. Limitations on Suits by Securityholders 34
SECTION 5.7. Unconditional Right of Securityholders to Institute
Certain Suits 35
SECTION 5.8. Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default 35
SECTION 5.9. Control by Securityholders 35
SECTION 5.10. Waiver of Past Defaults 36
SECTION 5.11. Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances 36
SECTION 5.12. Right of Court to Require Filing of Undertaking to
Pay Costs 36
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.1. Duties and Responsibilities of the Trustee; During
Default; Prior to Default 36
SECTION 6.2. Certain Rights of the Trustee 37
SECTION 6.3. Trustee Not Responsible for Recitals; Disposition of
Securities or Application of Proceeds Thereof 38
SECTION 6.4. Trustee and Agents May Hold Securities; Collections; etc. 38
SECTION 6.5. Moneys Held by Trustee 39
SECTION 6.6. Compensation and Indemnification of Trustee and Its
Prior Claim 39
SECTION 6.7. Right of Trustee to Rely on Officers' Certificate, etc. 39
SECTION 6.8. Disqualification of Trustee; Conflicting Interests 39
SECTION 6.9. Persons Eligible for Appointment of Successor Trustee 39
SECTION 6.10. Resignation and Removal; Appointment of Successor
Trustee 40
SECTION 6.11. Acceptance of Appointment by Successor Trustee 41
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
Business of Trustee 42
SECTION 6.13. Preferential Collection of Claims Against the Company 42
ARTICLE VII
CONCERING THE SECURITYHOLDERS
SECTION 7.1. Evidence of Action Taken by Securityholders 45
SECTION 7.2. Proof of Execution of Instruments 46
SECTION 7.3. Holders to Be Treated as Owners 46
SECTION 7.4. Securities Owned by Company Deemed Not Outstanding 46
SECTION 7.5. Right of Revocation of Action Taken 47
SECTION 7.6. Record Date for Determination of Holders Entitled to Vote 47
ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION 8.1. Supplemental Indentures Without Consent of
Securityholders 47
SECTION 8.2. Supplemental Indentures With Consent of Securityholders 48
SECTION 8.3. Effect of Supplemental Indenture 49
SECTION 8.4. Documents to Be Given to Trustee 49
SECTION 8.5. Notation on Securities in Respect of Supplemental
Indentures 50
35
<PAGE>
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1. Company May Consolidate, etc., on Certain Terms 50
SECTION 9.2. Successor Corporation Substituted 50
SECTION 9.3. Opinion of Counsel to Trustee 51
ARTICLE X
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 10.1. Satisfaction and Discharge of Indenture 51
SECTION 10.2. Application by Trustee of Funds Deposited for Payment
of Securities 54
SECTION 10.3. Repayment of Moneys Held by Paying Agent 54
SECTION 10.4. Return of Unclaimed Moneys Held by Trustee and Paying
Agent 54
SECTION 10.5. Reinstatement of Company's Obligations 55
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1. Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability 55
SECTION 11.2. Provisions of Indenture for the Sole Benefit of Parties
and Securityholders 55
SECTION 11.3. Successors and Assigns of Company Bound by Indenture 55
SECTION 11.4. Notices and Demands on Company Trustee and
Securityholders 55
SECTION 11.5. Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein 56
SECTION 11.6. Payments Due on Saturdays, Sundays and Holidays 57
SECTION 11.7. Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939 57
SECTION 11.8. New York Law to Govern 57
SECTION 11.9. Counterparts 57
SECTION 11.10. Effect of Headings; Gender 57
SECTION 11.11. Determination of Principal Amount 57
ARTICLE XII
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1. Applicability of Article 58
SECTION 12.2. Notice of Redemption; Partial Redemptions 58
SECTION 12.3. Payment of Securities Called for Redemption 59
SECTION 12.4. Exclusion of Certain Securities from Eligibility for
Selection for Redemption 60
SECTION 12.5. Mandatory and Optional Sinking Funds 60
SECTION 12.6. Repayment at the Option of the Holders 62
36
<PAGE>
ARTICLE XIIII
HOLDERS' MEETINGS
SECTION 13.1. Purposes of Meetings 62
SECTION 13.2. Call of Meetings by Trustee 62
SECTION 13.3. Call of Meetings by Company or Holders 62
SECTION 13.4. Qualifications for Voting 62
SECTION 13.5. Regulations 62
SECTION 13.6. Voting 64
SECTION 13.7. No Delay of Rights by Meetings 64
37
<PAGE>
THIS INDENTURE, dated as of March 17, 1997 between COOPER TIRE & RUBBER
COMPANY, a Delaware corporation (the "Company"), and THE CHASE MANHATTAN BANK,
a New York banking corporation (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has duly authorized the issue from time to time of
its unsecured debentures, notes or other evidences of indebtedness to be
issued in one or more Series (the "Securities") up to such principal amount or
amounts as may from time to time be authorized in accordance with the terms of
this Indenture; and in order to provide, among other things, for the
authentication, delivery and administration thereof, the Company has duly
authorized the execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done.
NOW, THEREFORE, in consideration of the premises and the purchases of the
Securities by the holders thereof, the Company and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the respective
holders from time to time of the Securities as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939 or
the definitions of which in the Securities Act of 1933 are referred to in the
Trust Indenture Act of 1939, including terms defined therein by reference to
the Securities Act of 1933 (except as herein otherwise expressly provided or
unless the context otherwise clearly requires), shall have the meanings
assigned to such terms in said Trust Indenture Act and in said Securities Act
as in force at the date of this Indenture. All accounting terms used herein
and not expressly defined shall have the meanings assigned to such terms in
accordance with generally accepted accounting principles and the term
"generally accepted accounting principles" means such accounting principles as
are generally accepted at the time of any computation. The words "herein",
"hereof" and "hereunder" and other words of similar import refer to this
Indenture as a whole, as supplemented and amended from time to time, and not
to any particular Article, Section or other subdivision. The terms defined in
this Article have the meanings assigned to them in this Article and include
the plural as well as the singular.
"Attributable Debt" means, as of any date upon which a determination of
the amount thereof shall be computed, an amount determined by multiplying the
greater, at the time a sale and leaseback transaction was entered into, of (i)
the fair value of the real property subject to such arrangement (as determined
by the Company) or (ii) the net proceeds of the sale of such real property to
the lender or investor, by a fraction of which the numerator shall be the
unexpired initial term of the lease of such real property as of the date of
determination of such computation and of which the denominator shall be the
full initial term of such lease. Attributable Debt shall not include any such
arrangement for financing air, water or noise pollution control facilities or
sewage or solid waste disposal facilities or involving industrial development
bonds which are tax exempt pursuant to Section 103 of the United States
Internal Revenue Code, as amended (or which receive similar tax treatment
under any subsequent amendments thereto or successor laws thereof).
"Board of Directors" means either the Board of Directors of the Company
or any committee of such Board and duly authorized to act hereunder.
1
38
<PAGE>
"Business Day" means, except as may otherwise be provided in the form of
Securities of any particular Series, with respect to any Place of Payment, any
day, other than a Saturday or Sunday, that is not a legal holiday, or a day on
which banking institutions are authorized or required by law or regulation to
close in the city in which the Corporate Trust Office is located or such Place
of Payment, or, with respect to Securities denominated in a Foreign Currency,
the capital city of the country of such Foreign Currency, or, with respect to
Securities denominated in ECU, Brussels, Belgium.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or if
at any time after the execution and delivery of this Indenture such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Company" means (except as otherwise provided in Article VI) Cooper Tire
& Rubber Company, a Delaware corporation, and, subject to Article IX, its
successors and assigns.
"Company Notice" means the confirmation of the Company signed by an
officer, transmitted by facsimile and confirmed in writing to the Trustee of
the terms of the issuance of any Securities issuable in Tranches.
"Component Currency" has the meaning specified in Section 2.12.
"Consolidated Net Tangible Assets" means the aggregate amount of assets
(less applicable reserves and other properly deductible items) after deducting
therefrom (i) all current liabilities (excluding any thereof constituting
Funded Debt by reason of being extendible or renewable) and (ii) all goodwill,
trade names, trademarks, patents, unamortized debt discount and expense and
other like intangibles (excluding intangible assets which offset recorded
liabilities), all as set forth on the most recent balance sheet of the Company
and its consolidated subsidiaries and computed in accordance with generally
accepted accounting principles.
"Conversion Date" has the meaning specified in Section 2.12.
"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 execution of this Indenture is
located at 450 West 33rd Street, 15th Floor, New York, New York 10001-2697,
Attention: Global Trust Services, facsimile: (212) 946-8158.
"Coupon" means any interest coupon appertaining to any Security.
"Coupon Security" means any Security authenticated and delivered with one
or more Coupons appertaining thereto.
"Currency Determination Agent" means the New York Clearing House Bank, if
any, from time to time selected by the Company for purposes of Section 2.12.
"covenant defeasance" has the meaning specified in Section 10.1(b)(iii).
"defaulted interest" has the meaning specified in Section 2.7.
"defeasance" has the meaning specified in Section 10.1(b)(iii).
"Depositary" means, with respect to Securities of any Series for which
the Company shall determine that such Securities will be issued as a
Depositary Security, The Depository Trust Company, New York, New York, or
another clearing agency or any successor registered under the Securities
Exchange Act of 1934, as amended, or other applicable statute or regulation,
which, in each case, shall be designated by the Company pursuant to
Sections 2.3 and 2.14.
2
39
<PAGE>
"Depositary Security" means, with respect to any series of Securities, a
Security executed by the Company and authenticated and delivered by the
Trustee to the Depositary or pursuant to the Depositary's instruction, all in
accordance with this Indenture and pursuant to a resolution of the Board of
Directors or otherwise as contemplated by Section 2.3, which (i) shall be
registered as to principal and interest in the name of the Depositary or its
nominee and (ii) shall represent, and shall be denominated in an amount equal
to the aggregate principal amount of, all of the Outstanding Securities of
such Series.
"Dollar" means the coin or currency of the United States of America which
as of the time of payment is legal tender for the payment of public and
private debts.
"Dollar Equivalent of the ECU" has the meaning specified in Section 2.12.
"Dollar Equivalent of the Foreign Currency" has the meaning specified in
Section 2.12.
"ECU" means the European Currency Unit as defined and revised from time
to time by the Council of the European Communities.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" means any event or condition specified as such in
Section 5.1.
"Exchange Rate Officer's Certificate" means a facsimile or a certificate
setting forth the applicable Official ECU Exchange Rate and the Dollar or
Foreign Currency amounts payable on the basis of such Official ECU Exchange
Rate in respect of the principal of and interest on Registered Securities,
signed (in either case) by the Chief Financial Officer, the Treasurer or any
Assistant Treasurer of the Company and delivered to the Trustee.
"Foreign Currency" means a currency issued by the government of any
country other than the United States.
"Funded Debt" means all indebtedness for money borrowed, or evidenced by
a bond, debenture, note or similar instrument or agreement whether or not for
money borrowed, having a maturity of more than 12 months from the date as of
which the amount thereof is to be determined or having a maturity of less than
12 months but by its terms being renewable or extendible beyond 12 months from
such date at the option of the borrower.
"Government Obligations" means, unless otherwise specified pursuant to
Section 2.3, securities which are (i) direct obligations of the government
which issued the currency in which the Securities of any Series are payable or
(ii) obligations of a Person controlled or supervised by, or acting as an
agency or instrumentality of, the government which issued the currency in
which the Securities of such Series are payable, the payment of which
obligations is unconditionally guaranteed by such government, and which, in
either case, are full faith and credit obligations of such government, are
payable in the currency in which the Securities of such Series are payable and
are not callable or redeemable at the option of the issuer thereof.
"Holder", "Holder of Securities", "Securityholder" or other similar terms
mean the bearer of an Unregistered Security or a Registered Holder of a
Registered Security and, when used with respect to any Coupon, mean the bearer
thereof.
3
40
<PAGE>
"Indenture" means this instrument as originally executed and delivered
or, if amended or supplemented as provided herein, as so amended or
supplemented or both, and shall include the forms and terms of particular
Series of Securities established as contemplated hereunder.
"interest", when used with respect to non-interest bearing Securities,
means interest payable at maturity.
"Market Exchange Rate" has the meaning specified in Section 2.12.
"Officers' Certificate" means a certificate signed on behalf of the
Company by the Chairman of the Board of Directors or the Vice Chairman or the
President, Controller or any Vice President and by the Treasurer, any
Assistant Treasurer, the Secretary or any Assistant Secretary of the Company
and delivered to the Trustee. Each such certificate shall include the
statements provided for in Section 11.5.
"Official ECU Exchange Rate" applicable to any currency with respect to
any payment to be made hereunder, means the exchange rate between the ECU and
such currency reported by the Commission of the European Communities
(currently based on the rates in effect at 2:30 p.m., Brussels time, on the
relevant exchange markets) or if such exchange rate ceases to be so reported,
then such exchange rate shall be determined by the Currency Determination
Agent using, in its sole discretion and without liability on its part,
quotations from one or more major banks in New York City or such other
quotations as the Currency Determination Agent shall deem appropriate, on the
applicable record date.
"Opinion of Counsel" means an opinion in writing signed by legal counsel
who may be an employee of or counsel to the Company and who shall be
reasonably acceptable to the Trustee. Each such opinion shall include the
statements provided for in Section 11.5, if and to the extent required hereby.
"original issue date" of any Security (or portion thereof) means the date
set forth as such on such Security.
"Original Issue Discount Security" means any Security which provides for
an amount less than the stated principal amount thereof to be due and payable
upon declaration of acceleration of the maturity thereof pursuant to Section
5.1.
"Outstanding" (except as otherwise provided in Section 6.8), when used
with reference to Securities, shall, subject to the provisions of Section 7.4,
mean, as of any particular time, all Securities authenticated and delivered by
the Trustee under this Indenture, except:
Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount and in the specified currency or currency
unit shall have been deposited in trust with the Trustee or with any Paying
Agent (other than the Company) or shall have been set aside, segregated and
held in trust by the Company for the holders of such Securities (if the
Company shall act as its own Paying Agent), provided that, if such Securities,
or portions thereof, are to be redeemed prior to the maturity thereof, notice
of such redemption shall have been given as provided herein, or provision
satisfactory to the Trustee shall have been made for giving such notice; and
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Securities in substitution for which other Securities shall have
been authenticated and delivered, or which shall have been paid, pursuant to
the terms of Section 2.9 (except with respect to any such Security as to which
proof satisfactory to the Trustee and the Company is presented that such
Security is held by a person in whose hands such Security is a legal, valid
and binding obligation of the Company).
"Paying Agent" means any Person (which may include the Company)
authorized by the Company to pay the principal of or interest, if any, on any
Security on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
Series, means the place or places where the principal of and interest, if any,
on the Securities of that Series are payable as specified pursuant to Section
3.2.
"principal" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any".
"Principal Property" means any manufacturing plant or other facility
which is located within the continental United States of America and is owned
or leased by the Company or any Restricted Subsidiary, except any such plant
or facility (i) which the Board of Directors by resolution declares is not of
material importance to the total business conducted by the Company and its
Restricted Subsidiaries as an entirety and which, when taken together with all
other plants and facilities as to which such a declaration has been made, are
so declared by the Board of Directors to be not of material importance to the
total business conducted by the Company and its Restricted Subsidiaries as an
entirety or (ii) which is financed by industrial development bonds which are
tax exempt pursuant to Section 103 of the United States Internal Revenue Code,
as amended (or which receive similar tax treatment under any subsequent
amendments thereto or successor laws thereof).
"Registered Holder", when used with respect to a Registered Security,
means the person in whose name such Security is registered in the Security
register.
"Registered Security" means any Security registered in the Security
register.
"Responsible Officer", when used with respect to the Trustee, means any
officer within the Corporate Trust Office (or any successor Office) of the
Trustee including any vice president, assistant vice president, assistant
secretary, senior trust officer, trust officer or any other officer or
assistant officer of the Trustee customarily performing functions similar to
those performed by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred at the
Corporate Trust Office because of his or her knowledge of and familiarity with
the particular subject.
"Restricted Subsidiary" means any Subsidiary (i) substantially all the
property of which is located within the continental United States of America,
(ii) which owns or leases a Principal Property and (iii) in which the
Company's investment, direct or indirect and whether in the form of equity,
debt or advances, as shown on the consolidating balance sheet used in the
preparation of the latest quarterly consolidated financial statements of the
Company preceding the date of determination, is in excess of 1% of the total
consolidated assets of the Company as shown on such quarterly consolidated
financial statements.
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"sale and leaseback transaction" has the meaning specified in Section
3.10.
"Security" or "Securities" (except as otherwise provided in Section 6.8)
has the meaning stated in the first recital of this Indenture.
"Series" or "Series of Securities" means a series of Securities. Except
in Sections 1.1 "Outstanding", 2.3 and 7.4 and Articles V, VI and XI, the
terms "Series" or "Series of Securities" shall also mean a Tranche in the
event that the applicable Series may be issued in separate Tranches.
"Specified Amount" has the meaning specified in Section 2.12.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For purposes of this definition, "voting stock" means stock which ordinarily
has voting power for the election of directors, whether at all times or only
so long as no senior class of stock has such voting power by reason of any
contingency.
"Tranche" means all Securities of the same Series which have the same
issue date, maturity date, interest rate or method of determining interest,
redemption and repayment provisions, interest payment dates and, in the case
of Original Issue Discount Securities, which have the same issue price.
"Trustee" means the Person identified as "Trustee" in the first paragraph
hereof and, subject to the provisions of Article VI, any successor trustee.
"Trust Indenture Act of 1939" (except as otherwise provided in Sections
8.1 and 8.2) means the Trust Indenture Act of 1939 (as amended by the Trust
Indenture Reform Act of 1990), as in force at the date as of which this
Indenture was originally executed.
"United States of America" means the United States of America, excluding
its territories and possessions, but including the Commonwealth of Puerto
Rico.
"Unregistered Security" means any Security not registered in the Security
register as to principal.
"Unrestricted Subsidiary" means any Subsidiary other than a Restricted
Subsidiary.
"U.S. Person" means a citizen or resident of the United States of
America, a corporation, partnership or other entity created or organized in or
under the laws of the United States of America or any political subdivision
thereof or an estate or trust the income of which is subject to United States
of America federal income taxation regardless of whether such income is from
sources within or without the United States of America or whether or not such
income is effectively connected with the conduct of a trade or business within
the United States of America.
"Valuation Date" has the meaning specified in Section 2.12.
"Vice President" or "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 of "vice
president".
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ARTICLE II
SECURITIES
SECTION 2.1. Forms Generally. The Securities of each Series and the
Coupons, if any, shall be substantially in such form (not inconsistent with
this Indenture) as shall be established by or pursuant to a resolution of the
Board of Directors or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture (the provisions of
which shall be appropriate to reflect the terms of each Series of Securities,
including the currency or denomination, which may be Dollars, Foreign Currency
or ECU) and may have imprinted or otherwise reproduced thereon such legend or
legends, not inconsistent with the provisions of this Indenture, as may be
required to comply with any law or with any rules or regulations pursuant
thereto, or with any rules of any securities exchange or to conform to general
usage, all as may be determined by the officers executing such Securities and
Coupons, if any, as evidenced by their execution of the Securities and
Coupons, if any.
The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities and
Coupons, if any, as evidenced by their execution of such Securities and
Coupons, if any.
SECTION 2.2. Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the Series designated herein and
referred to in the within-mentioned Indenture.
as Trustee
By
Authorized Officer
[or
as Authentication Agent
By
Authorized Officer]
SECTION 2.3. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited. The Securities may be issued in one or more
Series. There shall be established in or pursuant to a resolution of the
Board of Directors (including by persons duly authorized thereby) and set
forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any Series:
the title of the Securities of the Series (which title shall
distinguish the Securities of the Series from all other Securities issued by
the Company);
any limit upon the aggregate principal amount of the Securities of
the Series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the Series
pursuant to Section 2.8, 2.9, 2.11 or 12.3);
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if other than 100% of their principal amount, the percentage of
their principal amount at which the Securities of the Series will be offered;
the date or dates on which the principal of the Securities of the
Series is payable;
the rate or rates (which may be fixed or variable), or the method or
methods of determination thereof, at which the Securities of the Series shall
bear interest, if any, the date or dates from which such interest shall
accrue, the interest payment dates on which such interest shall be payable
and, in the case of Registered Securities, the record dates for the
determination of Holders to whom interest is payable;
the place or places where the principal and interest on Securities
of the Series shall be payable (if other than as provided in Section 3.2);
the price or prices at which, the period or periods within which and
the terms and conditions upon which Securities of the Series may be redeemed,
in whole or in part, at the option of the Company, pursuant to any sinking
fund or otherwise;
if other than the principal amount thereof, the portion of the
principal amount of Securities of the Series which shall be payable upon
declaration of acceleration of the maturity pursuant to Section 5.1 or
provable in bankruptcy pursuant to Section 5.2;
the obligation, if any, of the Company to redeem, purchase or repay
Securities of the Series whether pursuant to any sinking fund or analogous
provisions or pursuant to other provisions set forth therein or at the option
of a Holder thereof and the price or prices in the currency or currency unit
in which the Securities of such Series are payable, at which and the period or
periods within which and the terms and conditions upon which Securities of the
Series shall be redeemed, purchased or repaid, in whole or in part, pursuant
to such obligation;
the issuance as Registered Securities or Unregistered Securities or
both and the rights of the Holders to exchange Unregistered Securities for
Registered Securities of the Series or to exchange Registered Securities of
the Series for Unregistered Securities of the Series and the circumstances
under which any such exchanges, if permitted, may be made;
whether and under what circumstances the Company will pay additional
amounts on the Securities of the Series held by a Person who is not a U.S.
Person in respect of taxes or similar charges withheld or deducted and, if so,
whether the Company will have the option to redeem such Securities rather than
pay such additional amounts;
if other than denominations of $1,000 and any integral multiple
thereof, the denominations, which may be in Dollars, any Foreign Currency or
ECU, in which Securities of the Series shall be issuable;
the form of the Securities (or forms thereof if Unregistered and
Registered Securities shall be issuable in such Series), including such
legends as required by law or as the Company deems necessary or appropriate,
the form of any coupons or temporary global security which may be issued and
the forms of any certificates which may be required hereunder or which the
Company may require in connection with the offering, sale, delivery or
exchange of Unregistered Securities;
the currency or currencies, or currency unit or currency units in
which payments of interest or principal and other amounts payable with respect
to the Securities of the Series are to be denominated, payable, redeemable or
repurchasable, as the case may be;
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whether Securities of the Series are issuable in Tranches;
whether, and under what circumstances, the Securities of any Series
shall be convertible into Securities of any other Series;
if other than the Trustee, any trustees, authenticating or Paying
Agents, transfer agents or registrars or any other agents with respect to the
Securities of such Series;
if the Securities of such Series do not bear interest, the
applicable dates for purposes of Section 4.1;
whether the Securities of such Series are to be issuable in whole or
in part in the form of one or more Depositary Securities and, in such case,
the Depositary for such Securities;
the application, if any, of either or both of Sections 10.1(b)(ii)
and 10.1(b)(iii) to the Securities of the Series; and
any other terms or conditions upon which the Securities of the
Series are to be issued (which terms shall not be inconsistent with the
provisions of this Indenture).
All Securities of any one Series shall be substantially identical except
as to denomination, except as provided in the immediately succeeding paragraph
and except as may otherwise be provided in or pursuant to such resolution of
the Board of Directors or in any such indenture supplemental hereto. All
Securities of any one Series need not be issued at the same time and, unless
otherwise provided, a Series may be reopened for issuances of additional
Securities of such Series.
Each Series may be issued in one or more Tranches. Except as provided in
the foregoing paragraph, all Securities of a Tranche shall have the same issue
date, maturity date, interest rate or method of determining interest,
redemption and repayment provisions, interest payment dates and, in the case
of Original Issue Discount Securities, the same issue price.
SECTION 2.4. Authentication and Delivery of Securities. At any time and
from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any Series having attached thereto
appropriate Coupons, if any, executed by the Company to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver such
Securities to or upon the written order of the Company, signed by both (i) the
Chairman of its Board of Directors or any Vice Chairman of its Board of
Directors or its President or any Vice President and (ii) by its Treasurer or
any Assistant Treasurer, Secretary or any Assistant Secretary without any
further action by the Company. In authenticating such Securities and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive and (subject to
Section 6.1) shall be fully protected in relying upon:
a certified copy of any resolution or resolutions of the Board of
Directors authorizing the action taken pursuant to the resolution or
resolutions delivered under clause (b) below;
a copy of any resolution or resolutions of the Board of Directors
relating to such Series, in each case certified by the secretary or an
assistant secretary of the Company;
an executed supplemental indenture, if any;
an Officers' Certificate setting forth the form and terms of the
Securities of such Series as required pursuant to Sections 2.1 and 2.3,
respectively, and prepared in accordance with Section 11.5;
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an Opinion of Counsel, prepared in accordance with Section 11.5,
which shall state:
that the form or forms and terms of such Securities and Coupons, if
any, have been established by or pursuant to a resolution of the Board of
Directors or by a supplemental indenture as permitted by Sections 2.1 and 2.3
in conformity with the provisions of this Indenture and in conformity with
such resolution;
that such Securities and Coupons, if any, have been duly authorized
and, when authenticated and delivered by the Trustee and issued by the Company
in the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and binding obligations of the Company
enforceable in accordance with their terms, subject to applicable bankruptcy,
insolvency, reorganization or other laws relating to or affecting the
enforcement of creditors' rights generally and by general equitable
principles, regardless of whether such enforceability is considered in a
proceeding in equity or at law;
the registration statement, if any, relating to the Securities of
such Series and any amendments thereto has become effective under the
Securities Act of 1933 and to the best knowledge of such counsel, no stop
order suspending the effectiveness of such registration statement, as amended,
has been issued and no proceedings for that purpose have been instituted or
threatened; and
the authentication and delivery of the Securities of such Series by
the Trustee in accordance with the directions of the Company, and the
Company's execution and delivery of the Securities of such Series, will not
violate the terms of this Indenture;
provided, however, that in the case of any Series issuable in Tranches, if the
Trustee has previously received the documents referred to in subsections (a)
through (e) of Section 2.4 with respect to such Series, the Trustee shall
authenticate and deliver Securities of such Series executed and delivered by
the Company for original issuance upon receipt by the Trustee of the
applicable Company Notice.
The Trustee shall have the right to decline to authenticate and deliver
any Securities and Coupons, if any, under this Section if the Trustee, being
advised by counsel, determines that such action may not lawfully be taken by
the Company or if the issue of such Securities pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under this Indenture in
a manner not reasonably acceptable to the Trustee. Without limiting the
generality of the foregoing, the Trustee shall not be required to authenticate
Securities denominated in a Foreign Currency if the Trustee reasonably
believes that it will be unable to perform its duties hereunder with respect
to such Securities.
SECTION 2.5. Execution of Securities. The Securities shall be signed on
behalf of the Company by both (i) the Chairman of its Board of Directors or
its President or any Vice President and (ii) its Treasurer or any Assistant
Treasurer or its Secretary or any Assistant Secretary, under its corporate
seal which may, but need not, be attested. Such signatures may be the manual
or facsimile signatures of the present or any future such officers. The seal
of the Company may be in the form of a facsimile thereof and may be impressed,
affixed, imprinted or otherwise reproduced on the Securities. Typographical
and other minor errors or defects in any such reproduction of the seal or any
such signature shall not affect the validity or enforceability of any Security
that has been duly authenticated and delivered by the Trustee. Any Coupons
attached to any Unregistered Security shall be executed on behalf of the
Company by the manual or facsimile signature of any such officer of the
Company.
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In case any officer of the Company who shall have signed any of the
Securities or Coupons shall cease to be such officer before the Security or
Coupon so signed shall be authenticated (in the case of the Securities) and
delivered by the Trustee or disposed of by the Company, such Security or
Coupon nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security or Coupon had not ceased to be such
officer of the Company; and any Security or Coupon may be signed on behalf of
the Company by such persons as, at the actual date of the execution of such
Security or Coupon, shall be the proper officers of the Company, although at
the date of the execution and delivery of this Indenture any such person was
not such an officer.
SECTION 2.6. Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one
of its authorized officers, shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. Such certificate by the
Trustee upon any Security executed by the Company shall be conclusive evidence
that the Security so authenticated has been duly authenticated and delivered
hereunder and that the Holder is entitled to the benefits of this Indenture.
The Trustee shall not authenticate or deliver any Unregistered Security
until any matured Coupons appertaining thereto have been detached and
canceled, except as otherwise provided or permitted by this Indenture.
SECTION 2.7. Denomination and Date of Securities; Payments of Interest.
The Securities shall be issuable in denominations as shall be specified as
contemplated by Section 2.3. In the absence of any such specification with
respect to the Securities of any Series, the Securities of such Series shall
be issuable in denominations of $1,000 and any multiple thereof, which may be
in Dollars, any Foreign Currency or ECU, and interest shall be computed on the
basis of a 360-day year of twelve 30-day months. The Securities shall be
numbered, lettered or otherwise distinguished in such manner or in accordance
with such plan as the officers of the Company executing the same may determine
with the approval of the Trustee as evidenced by the execution and
authentication thereof.
Each Security shall be dated the date of its authentication, shall bear
interest from the date and shall be payable on the dates, in each case, which
shall be specified as contemplated by Section 2.3.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any interest payment date shall be paid, in the case of
Registered Securities, to the person in whose name that Security (or one or
more predecessor Securities) is registered at the close of business on the
regular record date for the payment of such interest and, in the case of
Unregistered Securities, upon surrender of the Coupon appertaining thereto in
respect of the interest due on such interest payment date.
The term "record date" as used with respect to any interest payment date
(except for a date for payment of defaulted interest) means the date specified
as such in the terms of the Securities of any particular Series, or, if no
such date is so specified, if such interest payment date is the first day of a
calendar month, the close of business on the fifteenth day of the next
preceding calendar month or, if such interest payment date is the fifteenth
day of a calendar month, the close of business on the first day of such
calendar month, whether or not such record date is a Business Day.
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Any interest on any Security of any Series which is payable, but is not
punctually paid or duly provided for, on any interest payment date (called
"defaulted interest" for purposes of this Section) shall forthwith cease to be
payable to the Registered Holder on the relevant 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 subsection (a) or (b)
below:
The Company may elect to make payment of any defaulted interest to
the persons in whose names any such Registered Securities (or their respective
predecessor Securities) are registered at the close of business on a special
record date for the payment of such defaulted interest, which shall be fixed
in the following manner. The Company shall notify the Trustee in writing of
the amount of defaulted interest proposed to be paid on each Security of such
Series and the date of the proposed payment and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such defaulted interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the persons entitled to such defaulted interest as, provided in
this subsection. Thereupon, the Trustee shall fix a special record date for
the payment of such defaulted interest in respect of Registered Securities of
such Series which shall be not more than 15 nor 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 thereof to be mailed, first
class postage prepaid, to each Registered Holder at his address as it appears
in the Security register, not less than 10 days prior to such special record
date. Notice of the proposed payment of such defaulted interest and the
special record date therefor having been mailed as aforesaid, such defaulted
interest in respect of Registered Securities of such Series shall be paid to
the person in whose names such Securities (or their respective predecessor
Securities) are registered on such special record date and such defaulted
interest shall no longer be payable pursuant to the following subsection (b).
The Company may make payment of any defaulted interest on the
Registered Securities of any Series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of that Series 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 subsection, such payment shall be
deemed practicable by the Trustee.
Any defaulted interest payable in respect of any Security of any Series
which is not a Registered Security shall be payable pursuant to such
procedures as may be satisfactory to the Trustee in such manner that there is
no discrimination as between the Holders of Registered Securities and other
Securities of the same Series, and notice of the payment date therefor shall
be given by the Trustee, in the name and at the expense of the Company, by
publication at least once in a newspaper of general circulation in New York,
New York and London, England.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon 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.
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SECTION 2.8. Registration, Transfer and Exchange. The Company will keep
at each office or agency to be maintained for such purpose as provided in
Section 3.2, a register or registers in which, subject to such reasonable
regulations as it may prescribe, it will register, and will register the
transfer of, Registered Securities as provided in this Article. Such register
shall be in written form in the English language or in any other form capable
of being converted into such form within a reasonable time. At all reasonable
times such register or registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any Registered
Security of any Series at any such office or agency to be maintained for such
purpose as provided in Section 3.2, the Company shall execute and the Trustee
shall authenticate and deliver in the name of the transferee or transferees a
new Registered Security or Registered Securities of the same Series of like
tenor and in authorized denominations for a like aggregate principal amount.
At the option of the Holder thereof, Unregistered Securities of a Series,
which by their terms are registerable as to principal and interest, may, to
the extent and under the circumstances specified pursuant to Section 2.3, be
exchanged for Registered Securities of such Series of like tenor and in
authorized denominations for a like aggregate principal amount. At the option
of the Holder thereof, Registered Securities of a Series, which by their terms
provide for the issuance of Unregistered Securities, may, to the extent and
under the circumstances specified pursuant to Section 2.3, be exchanged for
Unregistered Securities of such Series of like tenor and in authorized
denominations for a like aggregate principal amount. Securities so issued in
exchange for other Securities shall be issued upon surrender of the Securities
for which they are to be exchanged and, in the case of Coupon Securities,
together with all unmatured Coupons and matured Coupons in default
appertaining thereto, at the office or agency of the Company provided for in
Section 3.2 and upon payment, if the Company shall require, of charges
provided therein. Unregistered Securities of any Series issued in exchange
for Registered Securities of such Series between the regular record date for
such Registered Security and the next interest payment date will be issued
without the Coupon relating to such interest payment date, and Unregistered
Securities surrendered in exchange for Registered Securities between such
dates shall be surrendered without the Coupon relating to such interest
payment date. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, an Unregistered Security will not be delivered
in exchange for a Registered Security or Securities unless the Trustee
receives a certificate signed by the person entitled to delivery of such
Security or other items or documents fulfilling such conditions as shall be
required by regulations of the United States Department of the Treasury, or
shall be notified by the Company that such a certificate shall not be required
by such regulations; provided, however, that no such Unregistered Security
shall be delivered by the Trustee if the Trustee or such agent shall have, or
shall have been notified in writing by the Company that the Company has,
actual knowledge that such certificate is false.
Upon presentation for registration of any Unregistered Securities of any
Series which by its terms is registrable as to principal, at the office or
agency of the Company to be maintained as provided in Section 3.2, such
Security shall be registered as to principal in the name of the Holder thereof
and such registration shall be noted on such Security. Any Security so
registered shall be transferable on the registry books of the Company upon
presentation of such Security at such office or agency for similar notation
thereon.
Unregistered Securities shall be transferable by delivery, except while
registered as to principal. Registration of any Coupon Security shall not
affect the transferability by delivery of the Coupons appertaining thereto
which shall continue to be payable to bearer and transferable by delivery.
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All Securities and Coupons issued upon any transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt and entitled to the same benefits under this Indenture, as the Securities
and Coupons surrendered upon such transfer or exchange.
Every Security presented or surrendered for registration of transfer or
exchange shall (if so required by the Company or the Trustee) be duly endorsed
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed, by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Securities, other than
exchanges pursuant to Section 2.11, 8.5 or 12.3 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of
or exchange any Security during a period beginning at the opening of business
15 days before the day of the selection of Securities for redemption under
Article XII and ending at the close of business on (A) if Securities of such
Series are issuable only as Registered Securities, the day of mailing of the
relevant notice of redemption, (B) if Securities of such Series are issuable
only as Unregistered Securities, the day of the first publication of the
relevant notice of redemption or (C) if Securities of such Series are issuable
as Registered Securities and Unregistered Securities, the date of mailing of
the relevant notice of redemption or otherwise the date of such publication or
(ii) to register the transfer of or exchange any Security so selected for
redemption in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not redeemed.
SECTION 2.9. Mutilated, Defaced, Destroyed, Lost and Stolen Securities.
In case any temporary or definitive Security or Coupon shall become mutilated
or defaced or be destroyed, lost or stolen, the Company in its discretion may
execute and, upon the written request of any officer of the Company, the
Trustee shall authenticate and deliver, a new Security or Coupon of the same
Series, bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated or defaced Security or Coupon, or in lieu of
and substitution for the Security or Coupon so destroyed, lost or stolen. In
every case the applicant for a substitute Security or Coupon shall furnish to
the Company and to the Trustee and to any agent of the Company or the Trustee
such security or indemnity as may be required by them to indemnify and defend
and to save each of them harmless and, in every case of destruction, loss or
theft, evidence to their satisfaction of the destruction, loss or theft of
such Security or Coupon and of the ownership thereof.
Upon the issuance of any substitute Security or Coupon, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith. In case
any Security or Coupon which has matured or is about to mature or has been
called for redemption in full shall become mutilated or defaced or be
destroyed, lost or stolen, the Company may, instead of issuing a substitute
Security or Coupon, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated or defaced Security or
Coupon); provided, however, that interest represented by Coupons shall be
payable only upon presentation and surrender of such Coupons at an office or
agency of the Company located outside of the United States of America, unless
otherwise provided pursuant to Section 2.3, if the applicant for such payment
shall furnish to the Company and to the Trustee and any agent of the Company
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or the Trustee such security or indemnity as any of them may require to save
each of them harmless, and, in every case of destruction, loss or theft, the
applicant shall also furnish to the Company and the Trustee and any agent of
the Company or the Trustee evidence to their satisfaction of the destruction,
loss or theft of such Security or Coupon and of the ownership thereof.
Every substitute Security or Coupon of any Series issued pursuant to the
provisions of this Section by virtue of the fact that any Security or Coupon
is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen
Security or Coupon shall be at any time enforceable by anyone and shall be
entitled to all the benefits of (but shall be subject to all the limitations
of rights set forth in) this Indenture equally and proportionately with any
and all other Securities of such Series or Coupons duly authenticated and
delivered hereunder. All Securities or Coupons shall be held and owned upon
the express condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, defaced, destroyed, lost or stolen Securities or Coupons and shall
preclude any and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.10. Cancellation of Securities, Destruction Thereof. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or
analogous fund and all Coupons surrendered for payment or exchange, if
surrendered to the Company or any agent of the Company or the Trustee, shall
be delivered to the Trustee for cancellation or, if surrendered to the
Trustee, shall be cancelled by it; and no Securities or Coupons shall be
issued in lieu thereof, except as expressly permitted by any of the provisions
of this Indenture. The Trustee shall destroy cancelled Securities and Coupons
held by it and deliver a certificate of destruction to the Company. If the
Company shall acquire any of the Securities and Coupons, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities and Coupons unless and until the same are
delivered to the Trustee for cancellation.
SECTION 2.11. Temporary Securities. Pending the preparation of
definitive Securities for any Series, the Company may execute, and the Trustee
shall authenticate and deliver, temporary Securities for such Series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
reasonably acceptable to the Trustee). Temporary Securities of any Series may
be issued as Registered Securities or Unregistered Securities with or without
Coupons attached thereto, of any authorized denomination, and substantially in
the form of the definitive Securities of such Series but with such omissions,
insertions and variations as may be appropriate for temporary Securities, all
as may be determined by the Company with the concurrence of the Trustee.
Temporary Securities may contain such reference to any provisions of this
Indenture as may be appropriate. Every temporary Security shall be executed
by the Company and be authenticated by the Trustee upon the same conditions
and in substantially the same manner, and with like effect, as the definitive
Securities. Without unreasonable delay the Company shall execute and shall
furnish definitive Securities of such Series and thereupon temporary
Securities of such Series may be surrendered in exchange therefor without
charge at each office or agency to be maintained by the Company for that
purpose pursuant to Section 3.2, and the Trustee shall authenticate and
deliver in exchange for such temporary Securities of such Series a like
aggregate principal amount of definitive Securities of the same Series of
authorized denominations and, in the case of Unregistered Securities, having
attached thereto any appropriate Coupons. Until so exchanged, the temporary
Securities of any Series shall be entitled to the same benefits under this
Indenture as definitive Securities of such Series.
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SECTION 2.12. Currency and Manner of Payments in Respect of Securities.
Unless otherwise specified pursuant to Section 2.3, this Section shall apply
to Securities issued hereunder.
With respect to Registered Securities of any Series denominated in
Dollars or a Foreign Currency and with respect to Registered Securities
denominated in ECU with respect to which the Holders of such Securities have
not made the election provided for in subsection (b) below, the following
payment provisions shall apply:
Except as provided in subsection (a)(ii) or (e) below, payment of
the principal of any Registered Security will be made at the Place of Payment
by delivery of a check in the currency in which the Security is payable on the
payment date against surrender of such Registered Security, and any interest
on any Registered Security will be paid at the Place of Payment by mailing a
check in the currency in which the Securities are payable to the Person
entitled thereto at the address of such Person appearing on the Security
register.
Payment of the principal of and interest on such Security may also,
subject to applicable laws and regulations, be made at such other place or
places as may be designated by the Company by any appropriate method.
With respect to Registered Securities of any Series denominated in
ECU, the following payment provisions shall apply, except as otherwise
provided in subsections (e) and (f) below:
A resolution of the Board of Directors may provide with respect to
any Series of such Securities that Holders shall have the option to receive
payments of principal of and interest on such Security in any of the
currencies which may be designated for such election in such Security by
delivering to the Trustee a written election, to be in form and substance
satisfactory to the Trustee, not later than the close of business on the
record date immediately preceding the applicable payment date. Such election
will remain in effect for such Holder until changed by the Holder by written
notice to the Trustee (but any such change must be made not later than the
close of business on the record date immediately preceding the next payment
date to be effective for the payment to be made on such payment date and no
such change may be made with respect to payments to be made on any Security
with respect to which notice of redemption has been given by the Company
pursuant to Article XII). Any Holder of any such Security who shall not have
delivered any such election to the Trustee not later than the close of
business on the applicable record date will be paid the amount due on the
applicable payment date in ECU as provided in subsection (a) above. Payment
of principal shall be made at the Place of Payment on the payment date against
surrender of such Securities. Payment of interest shall be made at the Place
of Payment by mailing a check in the applicable currency to the Person
entitled thereto at the address of such Person appearing on the Security
register.
Payment of the principal of and interest on such Security may also,
subject to applicable laws and regulations, be made at such other place or
places as may be designated by the Company by any appropriate method.
Payment of the principal of any Unregistered Security and of
interest on any Coupon Security will be made at such place or places outside
the United States as may be designated by the Company by any appropriate
method only in the currency or currency unit in which the Security is payable
(except as provided in subsection (e) below) on the payment date against
surrender of the Unregistered Security, in the case of payment of principal,
or the relevant Coupon, in the case of payment of interest. Except as
provided in subsection (e) below, payment with respect to Unregistered
Securities and Coupons will be made by check, subject to any limitations on
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the methods of effecting such payment as shall be specified in the terms of
the Security established as provided in Section 2.3 and as shall be required
under applicable laws and regulations. Payment of the principal of and
interest on Unregistered Securities may also, subject to applicable laws and
regulations, be made at such other place or places as may be designated by the
Company by any appropriate method.
Not later than the fourth Business Day after the record date for
each payment date, the Trustee will deliver to the Company a written notice
specifying, in the currency in which each Series of the Securities are
denominated, the respective aggregate amounts of principal of and interest on
the Securities to be made on such payment date, specifying the amounts so
payable in respect of the Registered and the Unregistered Securities and in
respect of the Registered Securities as to which the Holders of Securities
denominated in ECU shall have elected to be paid in another currency as
provided in subsection (b) above. If a resolution of the Board of Directors
has provided for the election referred to in subsection (b) above and if at
least one Holder has made such election, then not later than the eighth
Business Day following each record date the Company will deliver to the
Trustee an Exchange Rate Officer's Certificate in respect of the Dollar or
Foreign Currency payments to be made on such payment date. The Dollar or
Foreign Currency amount receivable by Holders of Registered Securities
denominated in ECU who have elected payment in such currency as provided in
subsection (b) above shall be determined by the Company on the basis of the
applicable Official ECU Exchange Rate set forth in the applicable Exchange
Rate Officer's Certificate.
If the Foreign Currency in which any of the Securities are
denominated ceases to be used both by the government of the country which
issued such currency and for the settlement of transactions by public
institutions of or within the international banking community, or if the ECU
ceases to be used both within the European Monetary System and for the
settlement of transactions by public institutions of or within the European
Communities, then with respect to each date for the payment of principal of
and interest on the applicable Foreign Currency or ECU denominated Securities
occurring after the last date on which the Foreign Currency or ECU was so used
(the "Conversion Date"), the Dollar shall be the currency of payment for use
on each such payment date. The Dollar amount to be paid by the Company to the
Trustee and by the Trustee or any Paying Agent to the Holders of such
Securities with respect to such payment date shall be the Dollar Equivalent of
the Foreign Currency or, in the case of ECU, the Dollar Equivalent of the ECU,
as determined by the Currency Determination Agent as of the record date (the
"Valuation Date") in the manner provided in subsection (g) or (h) below.
If the Holder of a Registered Security denominated in ECU elects
payment in a specified Foreign Currency as provided for by subsection (b) and
such Foreign Currency ceases to be used both by the government of the country
which issued such currency and for the settlement of transactions by public
institutions of or within the international banking community, such Holder
shall receive payment in ECU, and if ECU ceases to be used both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities, such Holder shall receive
payment in Dollars.
The "Dollar Equivalent of the Foreign Currency" shall be determined
by the Currency Determination Agent as of each Valuation Date and shall be
obtained by converting the specified Foreign Currency into Dollars at the
Market Exchange Rate on the Valuation Date.
The "Dollar Equivalent of the ECU" shall be determined by the
Currency Determination Agent as of each Valuation Date and shall be the sum
obtained by adding together the results obtained by converting the Specified
Amount of each Component Currency into Dollars at the Market Exchange Rate on
the Valuation Date for such Component Currency.
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For purposes of this Section, the following terms shall have the
following meanings:
A "Component Currency" means any currency which, on the Conversion Date,
was a component currency of the ECU.
A "Specified Amount" of a Component Currency means the number of units or
fractions thereof which such Component Currency represented in the ECU on the
Conversion Date. If after the Conversion Date the official unit of any
Component Currency is altered by way of combination or subdivision, the
Specified Amount of such Component Currency shall be divided or multiplied in
the same proportion. If after the Conversion Date two or more Component
Currencies are consolidated into a single currency, the respective Specified
Amounts of such Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the respective Specified Amounts of such
consolidated Component Currencies expressed in such single currency and such
amount shall thereafter be a Specified Amount and such single currency shall
thereafter be a Component Currency. If after the Conversion Date any
Component Currency shall be divided into two or more currencies, the Specified
Amount of such Component Currency shall be replaced by specified amounts of
such two or more currencies, the sum of which, at the Market Exchange Rate of
such two or more currencies on the date of such replacement, shall be equal to
the Specified Amount of such former Component Currency divided by the number
of currencies into which such Component Currency was divided, and such amounts
shall thereafter be Specified Amounts and such currencies shall thereafter be
Component Currencies.
"Market Exchange Rate" means for any currency the noon Dollar buying rate
for that currency for cable transfers quoted in New York City on the Valuation
Date as certified for customs purposes by the Federal Reserve Bank of New
York. If such rates are not available for any reason with respect to one or
more currencies for which an exchange rate is required, the Currency
Determination Agent shall use, in its sole discretion and without liability on
its part, such quotation of the Federal Reserve Bank of New York as of the
most recent available date, or quotations from one or more major banks in New
York City or in the country of issue of the currency in question, or such
other quotations as the Currency Determination Agent shall deem appropriate.
Unless otherwise specified by the Currency Determination Agent, if there is
more than one market for dealing in any currency by reason of foreign exchange
regulations or otherwise, the market to be used in respect of such currency
shall be that upon which a nonresident issuer of securities designated in such
currency would purchase such currency in order to make payments in respect of
such securities.
All decisions and determinations of the Currency Determination Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent
of the ECU and the Market Exchange Rate shall be in its sole discretion and
shall, in the absence of manifest error, be conclusive for all purposes and
irrevocably binding upon the Company and all Holders of the Securities. In
the event that the Foreign Currency ceases to be used both by the government
of the country which issued such currency and for the settlement of
transactions by public institutions of or within the international banking
community, the Company, after learning thereof, will promptly give notice
thereof to the Trustee (and the Trustee will promptly thereafter give notice
in the manner provided in Section 11.4 to the Holders) specifying the
Conversion Date. In the event the ECU ceases to be used both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities, the Company, after
learning thereof, will promptly give notice thereof to the Trustee (and the
Trustee will promptly thereafter give notice in the manner provided in Section
11.4 to the Holders) specifying the Conversion Date and the Specified Amount
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of each Component Currency on the Conversion Date. In the event of any
subsequent change in any Component Currency as set forth in the definition of
Specified Amount above, the Company, after learning thereof, will similarly
give notice to the Trustee.
The Trustee shall be fully justified and protected in relying on and
acting upon the information so received by it from the Company and the
Currency Determination Agent and shall not otherwise have any duty or
obligation to determine such information independently.
SECTION 2.13. Compliance with Certain Laws and Regulations. If any
Unregistered Securities or Coupon Securities are to be issued in any Series of
Securities, the Company will use reasonable efforts to provide for
arrangements and procedures designed pursuant to then applicable laws and
regulations, if any, to ensure that Unregistered Securities or Coupon
Securities are sold or resold, exchanged, transferred and paid only in
compliance with such laws and regulations and without adverse consequences to
the Company.
SECTION 2.14. Securities Issuable in the Form of a Depositary Security.
If the Company shall establish pursuant to Section 2.3 that the Securities of
a particular Series are to be issued as a Depositary Security, then the
Company shall execute and the Trustee shall, in accordance with Section 2.4
and the order delivered to the Trustee thereunder, authenticate and deliver, a
Depositary Security which (i) shall represent, and shall be denominated in an
amount equal to the aggregate principal amount of, all of the Outstanding
Securities of such Series, (ii) shall be registered in the name of the
Depositary or its nominee, (iii) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction and (iv) shall bear a
legend substantially to the following effect: "EXCEPT AS OTHERWISE PROVIDED
IN SECTION 2.14 OF THE INDENTURE, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT
AS A WHOLE BY THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR OF THE DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR."
Notwithstanding any other provision of this Section or of Section
2.8, the Depositary Security of a Series may be transferred, in whole but not
in part and in the manner provided in Section 2.8, only to another nominee of
the Depositary for such Series, or to a successor Depositary for such Series
selected or approved by the Company or to a nominee of such successor
Depositary.
Unless and until Securities of a Series in definitive registered
form have been issued pursuant to Section 2.14(e):
the provisions of this Section shall be in full force and effect;
the Trustee shall be entitled to deal with the Depositary for all
purposes of this Indenture (including the payment of principal of and interest
on the Securities and the giving of instructions or directions hereunder) as
the sole Holder of the Securities and shall have no obligation to the
beneficial owners;
to the extent that the provisions of this Section conflict with any
other provisions of this Indenture, the provisions of this Section shall
control;
the rights of beneficial owners shall be exercised only through the
Depositary and shall be limited to those established by law and agreements
between such beneficial owners and the Depositary; and
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whenever this Indenture requires or permits actions to be taken
based upon instructions or directions of Holders of Securities evidencing a
specified percentage of the Outstanding Securities, the Depositary shall be
deemed to represent such percentage only to the extent that it has received
instructions to such effect from beneficial owners owning or representing,
respectively, such required percentage of the beneficial interest in the
Securities and has delivered such instructions to the Trustee.
Whenever a notice or other communication to the Holders is required
under this Indenture, unless and until Securities in definitive registered
form shall have been issued to beneficial owners pursuant to Section 2.14(e),
the Trustee shall give all such notices and communications specified herein to
be given to Holders of the Securities to the Depositary and shall have no
obligation to the beneficial owners.
If at any time the Depositary for a Series of Securities notifies
the Company that it is unwilling or unable to continue as Depositary for such
Series or if at any time the Depositary for such Series shall no longer be
registered or in good standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation and a successor Depositary
for such Series is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such condition, as the case
may be, this Section shall no longer be applicable to the Securities of such
Series and the Company will execute, and the Trustee will authenticate and
deliver, securities of such Series in definitive registered form without
coupons, in authorized denominations and in an aggregate principal amount
equal to the principal amount of the Depositary Security of such Series then
Outstanding in exchange for the Depositary Security. In addition, the Company
may at any time determine that the Securities of any Series shall no longer be
represented by a Depositary Security and that the provisions of this Section
shall no longer apply to the Securities of such Series. In such event the
Company will execute and the Trustee, upon receipt of an Officers' Certificate
evidencing such determination by the Company, will authenticate and deliver
Securities of such Series in definitive registered form without coupons, in
authorized denominations and in an aggregate principal amount equal to the
principal amount of the Depositary Security of such Series in exchange for
such Depositary Security. Upon the exchange of the Depositary Security for
such Securities in definitive registered form without coupons, in authorized
denominations, the Depositary Security shall be cancelled by the Trustee.
Such Securities in definitive registered form issued in exchange for the
Depositary Security pursuant to this subsection shall be registered in such
name and in such authorized denominations as the Depositary pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee.
ARTICLE III
COVENANTS OF THE ISSUER
SECTION 3.1. Payment of Principal and Interest. The Company covenants
and agrees for the benefit of each Series of Securities that it will duly and
punctually pay or cause to be paid (in the currency or currency unit in which
the Securities of such Series and Coupons, if any, are payable, except as
otherwise provided pursuant to Section 2.3 for the Securities of such Series
and except as provided in Sections 2.12(b), (e) and (f)) the principal of, and
interest on, each of the Securities of such Series in accordance with the
terms of the Securities of such Series, any Coupons appertaining thereto and
this Indenture.
The interest on Unregistered Securities shall be payable only upon
presentation and surrender of the several Coupons for such interest
installments as are evidenced thereby as they severally mature at the office
of a Paying Agent outside the United States. The interest on any temporary
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Unregistered Security shall be paid, as to any installment of interest
evidenced by a Coupon attached thereto, if any, only upon presentation and
surrender of such Coupon and, as to the other installments of interest, if
any, only upon presentation of such Securities for notation thereon of the
payment of such interest.
SECTION 3.2. Offices for Payment, etc. So long as any of the Securities
remain outstanding, the Company will maintain the following for each Series:
an office or agency (i) where the Securities may be presented for payment,
(ii) where the Securities may be presented for registration of transfer and
for exchange as provided in this Indenture and (iii) where notices and demands
to or upon the Company in respect of the Securities or of this Indenture may
be served. The Company will give to the Trustee written notice of the
location of any such office or agency and of any change of location thereof.
In case the Company shall fail to so designate or maintain any such office or
agency or shall fail to give such notice of the location or of any change in
the location thereof, presentations and demands may be made and notices may be
served at the Corporate Trust Office. Unless otherwise specified pursuant to
Section 2.3, the Trustee is appointed Paying Agent and Security registrar.
So long as any Coupon Securities or Unregistered Securities of any Series
remain outstanding, the Company will (except as specified pursuant to Section
2.3) maintain one or more offices or agencies outside the United States of
America in such city or cities as may be specified elsewhere in this Indenture
or as contemplated by Section 2.3, and shall maintain such office or offices
for a period of two years (or any period thereafter for which it is necessary
in order to conform to United States tax laws or regulations) after the
principal on such Coupon Securities or Unregistered Securities has become due
and payable, with respect to such Series where Coupons appertaining to
Securities of such Series or Unregistered Securities of such Series may be
surrendered or presented for payment or surrendered for exchange pursuant to
Section 2.8 and where notices and demands to or upon the Company in respect of
Coupons appertaining to Securities of such Series or the Unregistered
Securities of such Series or of this Indenture may be served. The Company
will give prompt written notice to the Trustee of the location, and any change
in the location, of any such office or agency. If at any time the Company
shall fail to maintain such required office or agency or shall fail to furnish
the Trustee with the address thereof, presentations, surrenders, notices and
demands in respect of Coupon Securities or Unregistered Securities may be made
or served at an office of the Trustee or its agent located outside the United
States of America as specified pursuant to Section 2.3; and the Company hereby
appoints the Trustee and any authenticating agent appointed hereunder as its
agents to receive all such presentations, surrenders, notices and demands.
SECTION 3.3. Appointment to Fill a Vacancy in Office of Trustee. The
Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so
that there shall at all times be a Trustee with respect to each Series of
Securities hereunder.
SECTION 3.4. Paying Agents. Whenever the Company shall appoint a Paying
Agent other than the Trustee with respect to the Securities of any Series, it
will cause such Paying Agent to execute and deliver to the Trustee an
instrument in which such Agent shall agree with the Trustee, subject to the
provisions of this Section:
that it will hold all sums received by it as such Agent for the
payment of the principal of or interest on the Securities of such Series or
Coupons (whether such sums have been paid to it by the Company or by any other
obligor on the Securities of such Series or Coupons) in trust for the benefit
of the Holders of the Securities of such Series or Coupons or of the Trustee
and, upon the occurrence of an Event of Default and upon the written request
of the Trustee, pay over all such sums received by it to the Trustee;
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that it will give the Trustee notice of any failure by the Company
(or by any other obligor on the Securities of such Series) to make any payment
of the principal of or interest on the Securities of such Series or Coupons
when the same shall be due and payable; and
that it will give the Trustee notice of any change of address of any
Holder of which it is aware.
The Company will, on or prior to each due date of the principal of or
interest on the Securities of such Series or Coupons, deposit with the Paying
Agent a sum sufficient to pay such principal or interest so becoming due and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of any failure to take such action.
If the Company shall act as its own Paying Agent with respect to the
Securities of any Series or Coupons, it will, on or before each due date of
the principal of or interest on the Securities of such Series or Coupons, set
aside, segregate and hold in trust for the benefit of the Holders of the
Securities of such Series or Holders of such Coupons a sum sufficient to pay
such principal or interest so becoming due. The Company will promptly notify
the Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, the Company may
at any time, for the purpose of obtaining a satisfaction and discharge with
respect to one or more or all Series of Securities or Coupons hereunder, or
for any other reason, pay or cause to be paid to the Trustee all sums held in
trust for any such Series by the Company or any Paying Agent hereunder, as
required by this Section, such sums to be held by the Trustee upon the trusts
herein contained.
Anything in this Section to the contrary notwithstanding, the agreement
to hold sums in trust as provided in this Section is subject to the provisions
of Sections 10.3 and 10.4.
SECTION 3.5. Written Statement to Trustee. The Company will deliver to
the Trustee, within 120 days after the end of each fiscal year of the Company
ending after the date hereof, a brief certificate (which need not comply with
Section 11.5) from the principal executive, financial or accounting officer of
the Company as to his or her knowledge, after due inquiry, of the Company's
compliance with all conditions and covenants under the Indenture (such
compliance to be determined without regard to any period of grace or
requirement of notice provided under the Indenture).
SECTION 3.6. Corporate Existence. Subject to Article IX, the Company
will do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence, rights (charter and statutory) and
franchises; provided, however, that the Company shall not be required to
preserve or cause to be preserved any such right or franchise if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION 3.7. Maintenance of Principal Properties. The Company will
cause all Principal Properties to be maintained and kept in good condition,
repair and working order and supplied with all necessary equipment and will
cause to be made all necessary repairs, renewals, replacements, betterments
and improvements thereof, all as in the judgment of the Company may be
necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent or restrict the Company from
discontinuing the operation or maintenance of, or sale, abandonment or other
disposition of, or other action with regard to, any of such properties if any
such action is, in the judgment of the Company, desirable in the conduct of
the business of the Company and not disadvantageous in any material respect to
the Holders.
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SECTION 3.8. Payment of Taxes and Other Claims. The Company will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges levied or
imposed upon the Company or upon the income, profits or property of the
Company and (ii) all lawful claims for labor, materials and supplies which, if
unpaid, might by law become a lien upon the property of the Company; provided,
however, that the Company shall not be required to pay or discharge or cause
to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings.
SECTION 3.9. Limitation upon Liens. The Company will not itself, and
will not permit any Restricted Subsidiary to, incur, issue, assume or
guarantee any notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed (notes, bonds, debentures or other similar
evidences of indebtedness for money borrowed being hereinafter in this Section
and Section 3.10 called "Debt"), secured by pledge of, or mortgage or other
lien (including lease purchase, installment purchase and other title retention
financing arrangements) on or in respect of, any Principal Property owned or
leased by the Company or any Restricted Subsidiary, or on any shares of stock
or Debt of any Restricted Subsidiary (such pledges, mortgages and other liens
being hereinafter in this Section and in Section 3.10 called "Liens"), without
effectively providing that the Securities (together with, if the Company shall
so determine, any other Debt of the Company or such Restricted Subsidiary then
existing or thereafter created which is not subordinate to the Securities)
shall be secured equally and ratably with (or prior to) such secured Debt (for
the purpose of providing such equal and ratable security, the principal amount
of any Securities which are Original Issue Discount Securities means and shall
not be less than that principal amount which could be declared to be due and
payable pursuant to Section 5.1 on the date of the making of such effective
provision and the extent of such equal and ratable security shall be adjusted,
to the extent permitted by law, as and when said principal amount changes over
time pursuant to Section 5.1 and any other provision hereof), so long as such
secured Debt shall be so secured, unless, after giving effect thereto, the
aggregate principal amount of all such secured Debt then outstanding plus all
Attributable Debt of the Company and its Restricted Subsidiaries in respect of
sale and leaseback transactions (as defined in Section 3.10) entered into
after the date of this Indenture (other than sale and leaseback transactions
permitted by Section 3.10(b)) would not exceed an amount equal to 10% of
Consolidated Net Tangible Assets; provided, however, that nothing contained in
this Section shall prevent, restrict or apply to, and there shall be excluded
from secured Debt in any computation under this Section, Debt secured by:
Liens existing as of the date of this Indenture on any property or
assets owned or leased by the Company or any Restricted Subsidiary;
Liens on property or assets of, or on any shares of stock or Debt
of, any corporation existing at the time such corporation becomes a Restricted
Subsidiary;
Liens on any property or assets or shares of stock or Debt existing
at the time of acquisition thereof (including acquisition through merger or
consolidation) or to secure the payment of all or any part of the purchase
price or construction cost thereof or to secure any Debt incurred prior to, at
the time of or within 120 days after the later of acquisition of such property
or assets or shares of stock or Debt or the completion of any such
construction and the commencement of operation of such property, for the
purpose of financing all or any part of the purchase price or construction
cost thereof;
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Liens on any property or assets to secure all or any part of the
cost of development, operation, construction, alteration, repair or
improvement of all or any part of such property or assets, or to secure Debt
incurred prior to, at the time of or within 120 days after the completion of
such development, operation, construction, alteration, repair or improvement,
whichever is later, for the purpose of financing all or any part of such cost
(provided that such Liens are limited to such property or assets, improvements
thereon and the land upon which such property, assets and improvements are
located and any other property or assets not then constituting a Principal
Property);
Liens in favor of, or which secure Debt owing to, the Company or a
Restricted Subsidiary;
Liens arising from the assignment of moneys due and to become due
under contracts between the Company or any Restricted Subsidiary and the
United States of America, any State, Territory or possession thereof or any
agency, department, instrumentality or political subdivision of any thereof;
or Liens in favor of the United States of America, any State, Commonwealth,
Territory or possession thereof or any agency, department, instrumentality or
political subdivision of any thereof, to secure progress, advance or other
payments pursuant to any contract or provision of any statute or pursuant to
the provisions of any contract not directly or indirectly in connection with
securing Debt;
any deposit or pledge as security for the performance of any bid,
tender, contract, lease or undertaking not directly or indirectly in
connection with the securing of Debt; any deposit or pledge with any
governmental agency required or permitted to qualify the Company or any
Restricted Subsidiary to conduct business, to maintain self-insurance or to
obtain the benefits of any law pertaining to workmen's compensation,
unemployment insurance, old age pensions, social security or similar matters,
or to obtain any stay or discharge in any legal or administrative proceedings;
deposits or pledges to obtain the release of mechanics', workmen's,
repairmen's, materialmen's or warehousemen's liens on the release of property
in the possession of a common carrier; any security interest created in
connection with the sale, discount or guarantee of notes, chattel mortgages,
leases, accounts receivable, trade acceptances or other paper, or contingent
repurchase obligations, arising out of sales of merchandise in the ordinary
course of business; liens permitted by Section 3.8; or other deposits or
pledges similar to those referred to in this subsection;
Liens arising by reason of any judgment, decree or order of any
court or other governmental authority, so long as any appropriate legal
proceedings which may have been initiated for review of such judgment, decree
or order shall not have been finally terminated or so long as the period
within which such proceedings may be initiated shall not have expired;
Liens created after the date of this Indenture on property leased to
or purchased by the Company or any Restricted Subsidiary after that date and
securing, directly or indirectly, obligations issued by a State, a Territory
or a possession of the United States of America, or any political subdivision
of any of the foregoing, or the District of Columbia, to finance the cost of
acquisition or cost of construction of such property, provided that the
interest paid on such obligations is entitled to be excluded from gross income
of the recipient pursuant to Section 103 of the Internal Revenue Code (or any
successor to such provision) as in effect at the time of the issuance of such
obligations; and
any extension, renewal, substitution or replacement (or successive
extensions, renewals, substitutions or replacements), as a whole or in part,
of any Lien referred to in subsections (a) through (i) above or the Debt
secured thereby; provided that (i) such extension, renewal, substitution or
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replacement Lien shall be limited to all or any part of the same property or
assets, shares of stock or Debt that secured the Lien extended, renewed,
substituted or replaced (plus improvements on such property and any other
property or assets not then constituting a Principal Property) and (ii) to the
extent, if any, that the Debt secured by such Lien at such time is increased,
the amount of such increase shall not be excluded from secured Debt under any
computation under this Section.
Debt created by the Company or any Restricted Subsidiary shall not be
cumulated with a guarantee of the same Debt by the Company or any other
Restricted Subsidiary for the same financial obligation.
SECTION 3.10. Limitation upon Sales and Leasebacks. The Company will
not itself, and will not permit any Restricted Subsidiary to, enter into any
arrangement after the date of this Indenture with any bank, insurance company
or other lender or investor (not including the Company or any Restricted
Subsidiary) providing for the leasing by the Company or any such Restricted
Subsidiary for a period, including renewals, in excess of three years of any
Principal Property which was or is owned or leased by the Company or such
Restricted Subsidiary which has been or is to be sold or transferred, more
than 120 days after such property has been owned by the Company or such
Restricted Subsidiary and completion of construction and commencement of full
operation thereof, to such lender or investor or to any Person to whom funds
have been or are to be advanced by such lender or investor on the security of
such Principal Property (herein referred to as a "sale and leaseback
transaction") unless either:
The Attributable Debt of the Company and its Restricted Subsidiaries
in respect of such sale and leaseback transaction and all other sale and
leaseback transactions entered into after the date of this Indenture (other
than sale and leaseback transactions permitted by Section 3.10(b)), plus the
aggregate principal amount of Debt secured by Liens on Principal Properties
then outstanding (excluding any such Debt secured by Liens covered in
subsections (a) through (j) of Section 3.9) without equally and ratably
securing the Securities, would not exceed 10% of Consolidated Net Tangible
Assets; or
The Company, within 120 days after the sale or transfer, applies an
amount equal to the greater of (i) the net proceeds of the sale of the
Principal Property sold and leased back pursuant to such arrangement or (ii)
the fair market value of the Principal Property so sold and leased back at the
time of entering into such arrangement (as determined by any two of the
following: the Chairman or any Vice Chairman of the Board, the President, any
Vice President, the Treasurer and the Controller of the Company) to the
retirement of Funded Debt (including Securities of any Series constituting
Funded Debt) of the Company (and any redemption of Securities of any Series
pursuant to this provision shall, if provided in the terms of such particular
Series of Securities, not be deemed to constitute a refunding operation or
anticipated refunding operation pursuant to any redemption provision of such
series otherwise prohibiting redemption when such would constitute a refunding
operation or anticipated refunding operation); provided that the amount to be
applied to the retirement of Funded Debt of the Company pursuant to this
subsection shall be reduced by (i) the principal amount of any Securities (the
principal amount of any Securities which are Original Issue Discount
Securities means and shall not be less than that principal amount which could
then be declared to be due and payable pursuant to Section 5.1) delivered
within 120 days after such sale or transfer to the Trustee for redemption and
cancellation and (ii) the principal amount of Funded Debt (similarly
determined with respect to Funded Debt that would constitute an Original Issue
Discount Security within the meaning of this Indenture), other than
Securities, voluntarily retired by the Company within 120 days after such
sale, whether or not any such retirement of Funded Debt covered by clause (i)
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or (ii) above shall be specified as being made pursuant to this subsection.
Notwithstanding the foregoing, no retirement referred to in this subsection
may be effected by payment at maturity or pursuant to any mandatory sinking
fund payment or any mandatory prepayment provision.
Notwithstanding the foregoing, where the Company or any Restricted
Subsidiary is the lessee in any sale and leaseback transaction, Attributable
Debt shall not include any Debt resulting from the guarantee by the Company or
any other Restricted Subsidiary of the lessee's obligation thereunder.
SECTION 3.11. Waiver of Certain Covenants. The Company may omit in any
particular instance to comply with any term, provision or condition set forth
in Sections 3.6 to 3.10, inclusive, with respect to the Securities of any
Series if before the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Securities of such Series
shall either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any
such term, provision or condition shall remain in full force and effect.
ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1. Company to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Company covenants and agrees that it will
furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the Holders of
the Registered Securities of each Series:
semiannually and not more than 15 days after each record date for
the payment of interest on such Securities, as hereinabove specified, as of
such record date and on dates to be determined pursuant to Section 2.3 for
non-interest bearing Securities in each year, and
at such other times as the Trustee may request in writing, within 30
days after receipt by the Company of any such request, such list to be as of a
date not more than 15 days prior to the time such information is furnished;
provided that, if and so long as the Trustee shall be the Security registrar
for such Series, such list shall not be required to be furnished but in any
event the Company shall be required to furnish such information concerning the
Holders of Coupon Securities and Unregistered Securities which is known to it;
provided, further, that the Company shall have no obligation to investigate
any matter relating to any Holder of an Unregistered Security or any Holder of
a Coupon.
SECTION 4.2. Preservation and Disclosure of Securityholders' Lists.
The Trustee shall preserve, in as current a form as is reasonably practicable,
all information as to the names and addresses of the Holders of each Series of
Securities contained in the most recent list furnished to it as provided in
Section 4.1 or maintained by the Trustee in its capacity as Security registrar
for such Series, if so acting. The Trustee may destroy any list furnished to
it as provided in Section 4.1 upon receipt of a new list so furnished.
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In case three or more Holders of Registered Securities of any Series
(hereinafter referred to as "applicants") apply in writing to the Trustee and
furnish to the Trustee reasonable proof that each such applicant has owned a
Security for a period of at least six months preceding the date of such
application and such application states that the applicants desire to
communicate with other Holders of Securities of a particular Series (in which
case the applicants must all hold Securities of such Series) or with Holders
of all Securities with respect to their rights under this Indenture or under
such Securities and such application is accompanied by a copy of the form of
proxy or other communication which such applicants propose to transmit, then
the Trustee shall, within five business days after the receipt of such
application, at its election, either:
afford to such applicants access to the information preserved at the
time by the Trustee in accordance with the provisions of subsection (a) above;
or
inform such applicants as to the approximate number of Holders of
Securities of such Series or all Securities, as the case may be, whose names
and addresses appear in the information preserved at the time by the Trustee,
in accordance with the provisions of subsection (a) above, as to the
approximate cost of mailing to such Securityholders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Securityholder of such Series or all Securities, as
the case may be, whose name and address appear in the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a)
above, a copy of the form of proxy or other communication which is specified
in such request, with reasonable promptness after a tender to the Trustee of
the material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender, the
Trustee shall mail to such applicants and file with the Commission together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the
best interests of the Holders of Securities of such Series or all Securities,
as the case may be, or could be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written
statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of such order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met, and shall enter
an order so declaring, the Trustee shall mail copies of such material to all
such Securityholders with reasonable promptness after the entry of such order
and the renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
Each and every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of the Company or the Trustee shall be held accountable
by reason of the disclosure of any such information as to the names and
addresses of the Holders of Securities in accordance with the provisions of
subsection (b) above, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under such subsection.
SECTION 4.3. Reports by the Company. The Company covenants:
to 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
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portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, or if the Company is not required to file information,
documents or reports pursuant to either of such Sections, then to file with
the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934 or 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;
to file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants provided for in this Indenture
as may be required from time to time by such rules and regulations; and
to transmit by mail to the Holders of Securities in the manner and
to the extent required by Sections 4.4(c) and 11.4, within 30 days after the
filing thereof with the Trustee, such summaries of any information, documents
and reports required to be filed by the Company pursuant to subsections (a)
and (b) above as may be required to be transmitted to such Holders by rules
and regulations prescribed from time to time by the Commission.
SECTION 4.4. Reports by the Trustee. On or before July 15 in each year
following the date hereof, so long as any Securities are outstanding
hereunder, the Trustee shall transmit by mail as provided below to the
Securityholders of each Series, as hereinafter provided in this Section, a
brief report dated as of the preceding May 15 with respect to:
its eligibility under Section 6.9 and its qualification under
Section 6.8, or in lieu thereof, if to the best of its knowledge it has
continued to be eligible and qualified under such Sections, a written
statement to such effect;
the creation of or any material change to a relationship specified
in paragraphs (1) through (10) of Section 310(b) of the Trust Indenture Act of
1939;
the character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof) made by the
Trustee, as such, which remain unpaid on the date of such report and for the
reimbursement of which it claims or may claim a lien or charge, prior to that
of the Securities of any Series, on any property or funds held or collected by
it as Trustee, except that the Trustee shall not be required (but may elect)
to report such advances if such advances so remaining unpaid aggregate not
more than 1/2 of 1% of the principal amount of the Securities of any Series
Outstanding on the date of such report;
the amount, interest rate and maturity date of all other
indebtedness owing by the Company (or by any other obligor on the Securities)
to the Trustee in its individual capacity on the date of such report, with a
brief description of any property held as collateral security therefor, except
any indebtedness based upon a creditor relationship arising in any manner
described in Section 6.13(b)(ii), (iii), (iv) or (vi);
any change to the property and funds, if any, physically in the
possession of the Trustee (as such) on the date of such report;
any additional Series of Securities which the Trustee has not
previously reported; and
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any action taken by the Trustee in the performance of its duties
under this Indenture which it has not previously reported and which in its
opinion materially affects the Securities, except action in respect of a
default, notice of which has been or is to be withheld by it in accordance
with the provisions of Section 5.11.
The Trustee shall transmit to the Securityholders of each Series, as
provided in subsection (c) below, a brief report with respect to the character
and amount of any advances (and if the Trustee elects so to state, the
circumstances surrounding the making thereof) made by the Trustee, as such,
since the date of the last report transmitted pursuant to the provisions of
subsection (a) above (or if such report has not yet been so transmitted, since
the date of this Indenture) for the reimbursement of which it claims or may
claim a lien or charge prior to that of the Securities of such Series on
property or funds held or collected by it as Trustee and which it has not
previously reported pursuant to this subsection, except that the Trustee shall
not be required (but may elect) to report such advances if such advances
remaining unpaid at any time aggregate 10% or less of the principal amount of
Securities of such Series Outstanding at such time, such report to be
transmitted within 90 days after such time.
Reports pursuant to this Section shall be transmitted by mail to all
registered Holders of Securities, as the names and addresses of such Holders
appear upon the Security register of the Company and to such Holders of
Unregistered Securities as have, within the two years preceding such notice,
filed their names and addresses with the Trustee for that purpose, and, except
in the case of reports pursuant to subsection (b) above, to all Holders whose
names and addresses appear in the information preserved at the time of such
notice by the Trustee in accordance with the provisions of Section 4.2(a).
A copy of each such report shall, at the time of such transmission
to Securityholders, be furnished to the Company and be filed by the Trustee
with each stock exchange upon which the Securities of any applicable Series
are listed and also with the Commission. The Company agrees to notify the
Trustee with respect to any Series when and as the Securities of such Series
become admitted to trading on any national securities exchange.
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1. Event of Default Defined; Acceleration of Maturity; Waiver
of Default. "Event of Default" with respect to Securities of any Series
wherever used herein, means any one of the following events which shall have
occurred and be continuing (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
default in the payment of any installment of interest upon any of
the Securities of such Series, as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
default in the payment of all or any part of the principal of any of
the Securities of such Series as and when the same shall become due and
payable either at maturity, upon any redemption, by declaration or otherwise;
or
default in the performance, or breach, of any covenant or warranty
of the Company contained in the Securities of such Series or in this Indenture
(other than a covenant or warranty, a default in the performance of which, or
the breach of which, is elsewhere in this Section specifically dealt with or
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which has expressly been included in this Indenture solely for the benefit of
a Series of Securities other than that Series), and continuance of such
default or breach for a period of 60 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 principal amount of the
Outstanding Securities of that Series a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company (including a default with
respect to Securities of any Series other than that Series), which
indebtedness is in excess of $10,000,000 outstanding principal amount, or
under any mortgage, indenture or instrument under which there may be issued or
by which there may be secured or evidenced any indebtedness for money borrowed
by the Company (including this Indenture), which indebtedness is in excess of
$10,000,000 outstanding principal amount, whether such indebtedness now exists
or shall hereafter be created, which default shall constitute a failure to pay
any portion of the principal of such indebtedness when due and payable after
the expiration of any applicable grace period with respect thereto or shall
have resulted in such indebtedness becoming or being declared due and payable
prior to the date on which it would otherwise have become due and payable,
without such indebtedness having been discharged, or such acceleration having
been rescinded or annulled, within a period of 10 days after there shall have
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 principal
amount of the Securities of such Series at the time Outstanding, a written
notice specifying such default and requiring the Company to cause such
indebtedness to be discharged or cause such acceleration to be rescinded or
annulled and stating that such notice is a "Notice of Default" hereunder; or
the entry by a court having jurisdiction in the premises of (i) 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 (ii) 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
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
any other Event of Default provided with respect to Securities of
such Series.
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If an Event of Default occurs and is continuing with respect to the
Securities of any Series, then and in each and every such case, unless the
principal of all Securities of such Series shall have already become due and
payable, either the Trustee for such Series or the Holders of not less than
25% in aggregate principal amount at maturity of the Securities of such Series
then Outstanding hereunder, by notice in writing to the Company (and to the
Trustee if given by such Holders), may declare the principal (or, in the case
of Original Issue Discount Securities, such principal amount as may be
determined in accordance with the terms thereof) of all the Securities of such
Series to be due and payable immediately and, upon any such declaration, the
same shall become and shall be immediately due and payable, anything in this
Indenture or in the Securities of such Series contained to the contrary
notwithstanding. This provision, however, is subject to the condition that if
at any time after the principal of the Securities of such Series (or, in the
case of Original Issue Discount Securities, such principal amount as may be
determined in accordance with the terms thereof) shall have been so declared
due and payable, and before any judgment or decree for the payment of the
moneys due shall have been obtained or entered as provided hereinafter, the
Company shall pay or shall deposit with the Trustee a sum sufficient to pay in
the currency or currency unit in which the Securities of such Series are
payable (except as otherwise provided pursuant to Section 2.3 for the
Securities of such Series and except as provided in Sections 2.12(b), (e) and
(f)) all matured installments of interest, if any, upon all the Securities of
such Series and the principal of any and all Securities of such Series which
shall have become due otherwise than by such acceleration (with interest upon
such principal and, to the extent that payment of such interest is enforceable
under applicable law, upon overdue installments of interest, at the rate borne
by the Securities of such Series (or, in the case of Original Issue Discount
Securities, at the yield to maturity) to the date of such payment or deposit)
and in Dollars such amount as shall be sufficient to cover reasonable
compensation to the Trustee, its agents, attorneys and counsel and all other
expenses and liabilities incurred, and all advances made, by the Trustee, its
agents, attorneys and counsel and any and all defaults under this Indenture,
other than the nonpayment of the principal of Securities of such Series which
shall have become due by such acceleration, shall have been remedied, then and
in every such case the Holders of a majority in aggregate principal amount at
maturity of the Securities of such Series then Outstanding, by written notice
to the Company and to the Trustee for the Securities of such Series, may waive
all defaults and rescind and annul such declaration and its consequences; but
no such waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
SECTION 5.2. Collection of Indebtedness by Trustee; Trustee May Prove
Debt. The Company covenants that (i) in case default shall be made in the
payment of any installment of interest on any of the Securities of any Series
when such interest shall have become due and payable and such default shall
have continued for a period of 30 days or (ii) in case default shall be made
in the payment of all or any part of the principal of any of the Securities of
any Series when the same shall have become due and payable, whether upon
maturity of the Securities of such Series or upon any redemption or by
declaration or otherwise, then upon demand of the Trustee for the Securities
of such Series, the Company will pay to the Trustee for the Securities of such
Series for the benefit of the Holders of the Securities of such Series and the
Holders of any Coupons appertaining thereto the whole amount that then shall
have become due and payable on all Securities of such Series or such Coupons
for principal of or interest, as the case may be (with interest to the date of
such payment upon the overdue principal and, to the extent that payment of
such interest is enforceable under applicable law, on overdue installments of
interest at the same rate as the rate of interest specified in the Securities
of such Series); and in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including reasonable
compensation to, and all expenses and liabilities incurred and all advances
made by, the Trustee and each predecessor Trustee and their respective agents,
attorneys and counsel.
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Until such demand is made by the Trustee, the Company may pay the
principal of and interest on the Securities of any Series to the persons
entitled thereto, whether or not the principal of and interest on the
Securities of such Series are overdue.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee for the Securities of such Series, in its own name and as
trustee of an express trust, shall be entitled and empowered to institute any
action or proceedings at law or in equity for the collection of the sums so
due and unpaid, and may prosecute any such action or proceedings to judgment
or final decree, and may enforce any such judgment or final decree against the
Company or other obligor upon such Securities and collect in the manner
provided by law out of the property of the Company or other obligor upon such
Securities and Coupons, wherever situated, the moneys adjudged or decreed to
be payable.
In case there shall be pending proceedings relative to the Company or any
other obligor upon the Securities and Coupons under Title 11 of the United
States Code or any other applicable Federal or state bankruptcy, insolvency or
other similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Company or its property or such other
obligor, or in case of any other comparable judicial proceedings relative to
the Company or other obligor under the Securities of any Series and Coupons,
if any, or to the creditors or property of the Company or such other obligor,
the Trustee, irrespective of whether the principal of any 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 pursuant to
the provisions of this Section, shall be entitled and empowered, by
intervention in such proceedings or otherwise:
to file and prove a claim or claims for the whole amount of
principal (or, if the Securities of such Series are Original Issue Discount
Securities, such portion of the principal amount as may be due and payable
with respect to the Securities of such Series pursuant to a declaration in
accordance with Section 5.1) and interest owing and unpaid in respect of the
Securities of any Series, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including
any claim for reasonable compensation to, and all expenses and liabilities
incurred and all advances made by, the Trustee and each predecessor Trustee
and their respective agents, attorneys and counsel) and of the Securityholders
and the Holders of any Coupons appertaining thereto allowed in any judicial
proceedings relative to the Company or other obligor upon all Securities of
any Series, or to the creditors or property of the Company or such other
obligor;
unless prohibited by applicable law and regulations, to vote on
behalf of the holders of the Securities of any Series in any election of a
trustee or a standby trustee in arrangement, reorganization, liquidation or
other bankruptcy or insolvency proceedings or person performing similar
functions in comparable proceedings; and
to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their
behalf; and any trustee, receiver, liquidator, custodian or other similar
official is hereby authorized by each of the Holders to make payments to the
Trustee for the Securities of such Series and, in the event that such Trustee
shall consent to the making of payments directly to the Securityholders, to
pay to such Trustee such amounts as shall be sufficient to cover reasonable
compensation to, and all expenses and liabilities incurred and all advances
made by, such Trustee, each predecessor Trustee and their respective agents,
attorneys and counsel and all other amounts due to such Trustee or any
predecessor Trustee pursuant to Section 6.6.
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Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any Series or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities or any Coupon appertaining thereto, may be
enforced by the Trustee for the Securities of such Series without the
possession of any of the Securities of such Series or any Coupon appertaining
thereto or the production thereof at any trial or other proceedings relative
thereto, and any such action or proceedings instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment, subject to the payment of the expenses, disbursements and
compensation of the Trustee, each predecessor Trustee and their respective
agents and attorneys, shall be for the ratable benefit of the Holders of the
Securities and Holders of any Coupons in respect of which such action was
taken.
In any proceedings brought by the Trustee for the Securities of such
Series (and also any proceedings involving the interpretation of any provision
of this Indenture to which the Trustee shall be a party), the Trustee shall be
held to represent all the Holders of the Securities and Coupons appertaining
thereto in respect to which such action was taken and it shall not be
necessary to make any Holders of such Securities and Coupons appertaining
thereto parties to any such proceedings.
SECTION 5.3. Application of Proceeds. Any moneys collected by the
Trustee for the Securities of such Series pursuant to this Article in respect
of the Securities of any Series shall be applied in the following order at the
date or dates fixed by such Trustee and, in case of the distribution of such
moneys on account of principal or interest, upon presentation of the several
Securities and any Coupons appertaining thereto in respect of which moneys
have been collected and stamping (or otherwise noting) thereon the payment, or
issuing Securities of such Series in reduced principal amounts in exchange for
the presented Securities of like Series if only partially paid, or upon
surrender thereof if fully paid:
first, to the payment of costs and expenses applicable to such
Series in respect of which moneys have been collected, including reasonable
compensation to, and all expenses and liabilities incurred and all advances
made by, the Trustee and each predecessor Trustee and their respective agents
and attorneys and all other amounts due to the Trustee or any predecessor
Trustee pursuant to Section 6.6;
second, in case the principal of the Securities of such Series in
respect of which moneys have been collected shall not have become and be then
due and payable, to the payment of interest on the Securities of such Series
in default in the order of the maturity of the installments of such interest,
with interest (to the extent that payment of such interest is permissible by
law and that such interest has been collected by the Trustee) upon the overdue
installments of interest at the same rate as the rate of interest specified in
such Securities, such payments to be made ratably to the persons entitled
thereto, without discrimination or preference;
third, in case the principal of the Securities of such Series in
respect of which moneys have been collected shall have become and shall be
then due and payable, to the payment of the whole amount then owing and unpaid
upon all the Securities of such Series for principal and interest, with
interest upon the overdue principal, and (to the extent that payment of such
interest is permissible by law and that such interest has been collected by
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the Trustee) upon overdue installments of interest at the same rate as the
rate of interest specified in the Securities of such Series; and in case such
moneys shall be insufficient to pay in full the whole amount so due and unpaid
upon the Securities of such Series, then to the payment of such principal and
interest without preference or priority of principal over interest or of
interest over principal, or of any installment of interest over any other
installment of interest, or of any Security of such Series over any other
Security of such Series, ratably to the aggregate of such principal and
accrued and unpaid interest; and
fourth, to the payment of the remainder, if any, to the Company or
any other person lawfully entitled thereto.
SECTION 5.4. Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the
exercise of any power granted in this Indenture or to enforce any other legal
or equitable right vested in the Trustee by this Indenture or by law.
SECTION 5.5. Restoration of Rights on Abandonment of Proceedings. In
case the Trustee for the Securities of any Series shall have proceeded to
enforce any right under this Indenture and such proceedings shall have been
discontinued or abandoned for any reason or shall have been determined
adversely to the Trustee, then and in every such case, subject to the
determination in any such proceeding, the Company and the Trustee shall be
restored respectively to their former positions and rights hereunder and all
rights, remedies and powers of the Company, the Trustee and the
Securityholders shall continue as though no such proceedings had been taken.
SECTION 5.6. Limitations on Suits by Securityholders. No Holder of any
Security of any Series or Holder of any Coupon shall have any right by virtue
or by availing itself of any provision of this Indenture to institute any
action or proceeding at law or in equity or in bankruptcy or otherwise upon or
under or with respect to this Indenture or for the appointment of a trustee,
receiver, liquidator, custodian or other similar official or for any other
remedy hereunder, unless such Holder previously shall have given to the
Trustee written notice of default and of the continuance thereof, as provided
hereinbefore, and unless also the Holders of not less than 25% in aggregate
principal amount of the Securities of such Series then Outstanding shall have
made written request upon the Trustee to institute such action or proceedings
in its own name as trustee hereunder and shall have offered to the Trustee
such reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby and the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity shall have
failed to institute any such action or proceeding and no direction
inconsistent with such written request shall have been given to the Trustee
pursuant to Section 5.9; it being understood and intended, and being expressly
covenanted by the taker and Holder of every Security and by a Holder of each
Coupon appertaining thereto with every other taker and Holder of a Security or
Holder of any Coupon appertaining thereto and the Trustee, that no one or more
Holders of Securities of any Series or one or more Holders of any Coupons
appertaining thereto shall have any right in any manner whatever, by virtue or
by availing of any provision of this Indenture, to affect, disturb or
prejudice the rights of any other such Holder of Securities or any other
Holders of such Coupons or to obtain or seek to obtain priority over or
preference to any other such Holder or to enforce any right under this
Indenture, except in the manner provided herein and for the equal, ratable and
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common benefit of all Holders of Securities of the applicable Series and all
the Holders of Coupons appertaining thereto. For the protection and
enforcement of the provisions of this Section, each and every Securityholder
and the Trustee shall be entitled to such relief as can be given either at law
or in equity.
SECTION 5.7. Unconditional Right of Securityholders to Institute Certain
Suits. Notwithstanding any provision in this Indenture and any provision of
any Security or Coupon, the right of any Holder of any Security and the right
of any Holder of any Coupon appertaining thereto to receive payment of the
principal of and interest on such Security at the respective rates, in the
respective amount and in the currency or currency unit therein prescribed on
or after the respective due dates expressed in such Security, or to institute
suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
SECTION 5.8. Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default. Except as provided in Section 5.6, no right or remedy
herein conferred upon or reserved to the Trustee or to the Securityholders is
intended to be exclusive of any other right or remedy and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Securityholder to exercise
any right or power accruing upon any Event of Default occurring and continuing
as aforesaid shall impair any such right or power or shall be construed to be
a waiver of any such Event of Default or an acquiescence therein; and, subject
to Section 5.6, every power and remedy given by this Indenture or by law to
the Trustee, to the Securityholders or to the Holder of any Coupon
appertaining thereto may be exercised from time to time, and as often as shall
be deemed expedient, by the Trustee, the Securityholders or Holders of any
Coupon.
SECTION 5.9. Control by Securityholders. The Holders of a majority in
aggregate principal amount of the Securities of each Series affected (with
each Series treated as a separate class) at the time Outstanding shall have
the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee with respect to the Securities of such Series by this
Indenture; provided that such direction shall not be otherwise than in
accordance with law and the provisions of this Indenture and provided,
further, that (subject to the provisions of Section 6.1) the Trustee shall
have the right to decline to follow any such direction if the Trustee, being
advised by counsel, shall determine that the action or proceeding so directed
may not lawfully be taken or if the Trustee in good faith by its board of
directors, the executive committee or a trust committee of directors or
Responsible Officers of the Trustee shall determine that the action or
proceedings so directed would involve the Trustee in personal liability or if
the Trustee in good faith shall so determine that the actions or forbearances
specified in or pursuant to such direction would be unduly prejudicial to the
interests of Holders of the Securities of all Series or of the Holders of any
Coupons appertaining thereto so affected not joining in the giving of said
direction, it being understood that (subject to Section 6.1) the Trustee shall
have no duty to ascertain whether or not such actions or forbearances are
unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
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SECTION 5.10. Waiver of Past Defaults. The Holders of a majority in
aggregate principal amount of the Securities of such Series at the time
Outstanding may, on behalf of the Holders of all the Securities of such Series
and Holders of all Coupons, if any, appertaining thereto, waive any past
default hereunder or its consequences, except a default in the payment of the
principal of or interest on any of the Securities of such Series. In the case
of any such waiver, the Company, the Trustee, the Holders of the Securities of
such Series and the Holder of any Coupon appertaining thereto shall be
restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or impair any
right consequent thereon.
Upon any such waiver, such default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 5.11. Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances. The Trustee shall transmit to the Securityholders of
any Series notice in the manner and, to the extent provided in Sections 4.4(c)
and 11.4, of all defaults which have occurred with respect to such Series,
such notice to be transmitted within 90 days after the occurrence thereof,
unless such defaults shall have been cured before the giving of such notice
(the term "default" or "defaults" for the purposes of this Section being
hereby defined to mean any event or condition which is, or with notice or
lapse of time or both would become, an Event of Default); provided that,
except in the case of default in the payment of the principal of or interest
on any of the Securities of such Series or any default in the payment of any
sinking fund installment or analogous obligation in respect of any of the
Securities 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 or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the interests of
the Securityholders of such Series.
SECTION 5.12. Right of Court to Require Filing of Undertaking to Pay
Costs. All parties to this Indenture agree, and each Holder of any Security
and each Holder of any Coupon, by his acceptance thereof, shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section shall
not apply to any suit instituted by the Trustee, to any suit instituted by any
Securityholder or group of Securityholders of any Series holding in the
aggregate more than 10% in aggregate principal amount of the Securities of
such Series or to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of or interest on any Security on
or after the due date expressed in such Security.
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.1. Duties and Responsibilities of the Trustee; During Default;
Prior to Default. With respect to the Holders of any Series of Securities
issued hereunder, the Trustee, prior to the occurrence of an Event of Default
with respect to the Securities of a particular Series and after the curing or
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waiving of all Events of Default which may have occurred with respect to such
Series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to the Securities of a Series has occurred (which has not been cured
or waived) of which a Responsible Officer has actual knowledge, the Trustee,
with respect to the Securities of such Series, shall exercise such of the
rights and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act
or its own willful misconduct, except that:
prior to the occurrence of an Event of Default with respect to the
Securities of any Series and after the curing or waiving of all such Events of
Default with respect to such Series which may have occurred:
the duties and obligations of the Trustee with respect to the
Securities of any Series shall be determined solely by the express provisions
of this Indenture and the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set forth in
this Indenture and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
in the absence of bad faith on the part of the Trustee, the Trustee
may conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any statements, certificates or
opinions furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such statements, certificates or opinions
which by any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture;
the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts; and
the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of
the Holders pursuant to Section 5.9 relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred upon the Trustee under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that
the repayment of such funds or adequate indemnity against such liability is
not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the conditions of this Section.
SECTION 6.2. Certain Rights of the Trustee. Subject to Section 6.1:
the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, Officers' Certificate or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, bond, debenture, note, coupon, security or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
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any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless
other evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the Secretary or any Assistant Secretary of the Company;
the Trustee may consult with counsel and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted to be taken by it hereunder in good
faith and in accordance with such advice or Opinion of Counsel;
the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred therein or thereby;
the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Indenture;
prior to the occurrence of any Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, appraisal, bond, debenture, note, coupon, security or other
paper or document unless requested in writing to do so by the Holders of not
less than a majority in aggregate principal amount of the Securities of all
Series affected then Outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of
the Trustee, not reasonably assured to the Trustee by the security afforded to
it by the terms of this Indenture, the Trustee may require reasonable
indemnity against such expenses or liabilities as a condition to proceeding;
the reasonable expenses of every such investigation shall be paid by the
Company or, if paid by the Trustee or any predecessor Trustee, shall be repaid
by the Company upon demand; and
the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 6.3. Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein
and in the Securities, except the Trustee's certificate of authentication,
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Securities or the Coupons. The Trustee represents that it is duly authorized
to execute and deliver this Indenture and perform its obligations hereunder.
The Trustee shall not be accountable for the use or application by the Company
of any of the Securities or of the proceeds thereof.
SECTION 6.4. Trustee and Agents May Hold Securities; Collections, etc.
The Trustee, any Paying Agent, Security registrar or any agent of the Company
or the Trustee, in its individual or any other capacity, may become the owner
or pledgee of Securities or Coupons with the same rights it would have if it
were not the Trustee or such agent or registrar and, subject to Sections 6.8
and 6.13, if operative, may otherwise deal with the Company and receive,
collect, hold and retain collections from the Company with the same rights it
would have if it were not the Trustee or such agent or registrar.
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SECTION 6.5. Moneys Held by Trustee. Subject to the provisions of
Section 10.4, all moneys received by the Trustee shall, until used or applied
as provided herein, be held in trust for the purposes for which they were
received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Company or the Trustee shall be under any liability for interest on any
moneys received by it hereunder (except as otherwise agreed with the Company).
SECTION 6.6. Compensation and Indemnification of Trustee and Its Prior
Claim. The Company covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to, reasonable compensation in Dollars
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) and the Company covenants and
agrees to pay or reimburse the Trustee and each predecessor Trustee upon its
request in Dollars for all reasonable expenses, disbursements and advances
incurred or made by or on behalf of it in accordance with any of the
provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all agents and other persons
not regularly in its employ) except any such expense, disbursement or advance
as may arise from its negligence or bad faith. The Company also covenants to
indemnify the Trustee and each predecessor Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without negligence
or bad faith on its part, arising out of or in connection with the acceptance
or administration of this Indenture or the trusts hereunder and its duties
hereunder, including the costs and expenses of defending itself against or
investigating any claim of liability in the premises. The obligations of the
Company under this Section to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each predecessor
Trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of
this Indenture. Such additional indebtedness shall be a senior claim to that
of the Securities upon all property and funds held or collected by the Trustee
as such, except funds held in trust for the benefit of the Holders of
particular Securities or the Holders of particular Coupons, and the Securities
are hereby subordinated to such senior claim.
SECTION 6.7. Right of Trustee to Rely on Officers' Certificate, etc.
Subject to Sections 6.1 and 6.2, whenever in the administration of the trusts
of this Indenture the Trustee shall deem it necessary or desirable that a
matter be proved or established prior to taking or suffering or omitting any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and
established by an Officers' Certificate complying with Section 11.5 delivered
to the Trustee, and such certificate, in the absence of negligence or bad
faith on the part of the Trustee, shall be full warrant to the Trustee for any
action taken, suffered or omitted by it or under the provisions of this
Indenture upon the faith thereof.
SECTION 6.8. Disqualification of Trustee; Conflicting Interests. If the
Trustee has or shall acquire any conflicting interest, as defined in the Trust
Indenture Act of 1939, then, within 90 days after ascertaining that it has
such conflicting interest, and if the default (as defined in the Trust
Indenture Act of 1939) to which such conflicting interest relates has not been
cured or waived or otherwise eliminated before the end of such 90-day period,
the Trustee shall either eliminate such conflicting interest or resign in the
manner and with the effect specified in the Trust Indenture Act of 1939 and
this Indenture.
SECTION 6.9. Persons Eligible for Appointment as Trustee. The Trustee
for each Series of Securities hereunder shall at all times be a corporation
organized and doing business under the laws of the United States of America or
of any State or the District of Columbia having a combined capital and surplus
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of at least $50,000,000 and which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or examination by
Federal, State or District of Columbia authority. Such corporation shall have
a corporate trust office (i) in the State of New York, The City of New York or
(ii) in the State of Illinois, City of Chicago, if there be such a corporation
in either such location willing to act upon reasonable and customary terms and
conditions. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. No obligor upon any Securities or person directly or indirectly
controlling, controlled by or under common control with any such obligor shall
serve as Trustee upon such Securities. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, the
Trustee shall resign immediately in the manner and with the effect specified
in Section 6.10.
SECTION 6.10.Resignation and Removal; Appointment of Successor Trustee.
The Trustee, or any trustee or trustees hereafter appointed, may at any time
resign with respect to one or more or all Series of Securities by giving
written notice of resignation to the Company and by mailing notice thereof to
the Holders in the manner and to the extent provided in Section 11.4. Upon
receiving such notice of resignation, the Company shall promptly appoint a
successor trustee or trustees with respect to the applicable Series by written
instrument in duplicate, executed by authority of the Board of Directors, one
copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee or trustees. If no successor trustee shall have
been so appointed with respect to any Series and have accepted appointment
within 30 days after the mailing of such notice of resignation, the resigning
trustee may petition any court of competent jurisdiction for the appointment
of a successor trustee, or any Securityholder who has been a bona fide Holder
of a Security or Securities of the applicable Series for at least six months
may, subject to the provisions of Section 5.12, on behalf of himself and all
others similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, appoint a successor trustee.
In case at any time any of the following shall occur:
the Trustee shall fail to comply with the provisions of Section 6.8
with respect to any Series of Securities after written request therefor by the
Company or by any Securityholder who has been a bona fide Holder of a Security
or Securities of such Series for at least six months; or
the Trustee shall cease to be eligible in accordance with the
provisions of Section 6.9 and shall fail to resign after written request
therefor by the Company or by any Securityholder; or
the Trustee shall become incapable of acting with respect to any
Series of the Securities or shall be adjudged a bankrupt or insolvent or a
receiver or liquidator of the Trustee or of its property shall be appointed or
any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation;
then, in any such case, the Company may remove the Trustee with respect to the
applicable Series of Securities and appoint a successor trustee for such
Series by written instrument, in duplicate, executed by order of the Board of
Directors of the Company, one copy of which instrument shall be delivered to
the Trustee so removed and one copy to the successor trustee, or, subject to
the provisions of Section 5.12, any Securityholder who has been a bona fide
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Holder of a Security or Securities 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 and the appointment of a
successor trustee with respect to such Series. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe, remove the
Trustee and appoint a successor trustee.
The Holders of a majority in aggregate principal amount of the
Securities of each Series at the time Outstanding may at any time remove the
Trustee with respect to the Securities of such Series and appoint a successor
trustee with respect to the Securities of such Series by delivering to the
Trustee so removed, to the successor trustee so appointed and to the Company
the evidence provided for in Section 7.1 of the action in that regard taken by
the Securityholders.
Any resignation or removal of the Trustee with respect to any Series
and any appointment of a successor trustee with respect to such Series
pursuant to any of the provisions of this Section shall become effective upon
acceptance of appointment by the successor trustee as provided in Section
6.11.
SECTION 6.11. Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 6.10 shall execute and
deliver to the Company and to its predecessor Trustee an instrument accepting
such appointment hereunder and thereupon the resignation or removal of the
predecessor Trustee with respect to all or any applicable Series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and
obligations with respect to such Series of its predecessor hereunder, with
like effect as if originally named as trustee for such Series hereunder; but,
nevertheless, on the written request of the Company or of the successor
trustee, upon payment of its charges then unpaid, the trustee ceasing to act
shall, subject to Section 10.4, pay over to the successor trustee all moneys
at the time held by it hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers, duties and
obligations. Upon request of any such successor trustee, the Company shall
execute any and all instruments in writing for more fully and certainly
vesting in and confirming to such successor trustee all such rights and
powers. Any trustee ceasing to act shall, nevertheless, retain a prior claim
upon all property or funds held or collected by such trustee to secure any
amounts then due it pursuant to the provisions of Section 6.6.
If a successor trustee is appointed with respect to the Securities of one
or more (but not all) Series, the Company, the predecessor Trustee and each
successor trustee with respect to the Securities of any applicable Series
shall execute and deliver an indenture supplemental hereto which shall contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the predecessor Trustee with respect
to the Securities of any Series as to which the predecessor Trustee is not
retiring shall continue to be vested in the predecessor Trustee and shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such trustees co-trustees of the same
trust and that each such trustee shall be trustee of a trust or trusts under
separate indentures.
No successor trustee with respect to any Series of Securities shall
accept appointment as provided in this Section unless at the time of such
acceptance such successor trustee shall be qualified under the provisions of
Section 6.8 and eligible under the provisions of Section 6.9.
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Upon acceptance of appointment by any successor trustee as provided in
this Section, the Company shall give notice in the manner and to the extent
provided in Section 11.4 to the Holders of Securities of any Series for which
such successor trustee is acting as trustee at their last addresses as they
shall appear in the Security register. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by
Section 6.10. If the Company fails to mail such notice within ten days after
acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be mailed at the expense of the Company.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that such
corporation shall be qualified under the provisions of Section 6.8 and
eligible under the provisions of Section 6.9, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any Series shall
have been authenticated but not delivered, any such successor to the Trustee
may adopt the certificate of authentication of any predecessor Trustee and
deliver such Securities so authenticated; and, in case at that time any of the
Securities of any Series shall not have been authenticated, any successor to
the Trustee may authenticate such Securities either in the name of any
predecessor Trustee hereunder or in the name of the successor Trustee; and in
all such cases such certificates shall have the full force which it is
provided anywhere in the Securities of such Series or in this Indenture that
the certificate of the Trustee shall have; provided that the right to adopt
the certificate of authentication of any predecessor Trustee or to
authenticate Securities of any Series in the name of any predecessor Trustee
shall apply only to its successor or successors by merger, conversion or
consolidation.
SECTION 6.13. Preferential Collection of Claims Against the Company.
Subject to the provisions of this Section, if the Trustee shall be or shall
become a creditor, directly or indirectly, secured or unsecured, of the
Company within three months prior to a default, as defined in subsection (c)
below, or subsequent to such a default, then, unless and until such default
shall be cured, the Trustee shall set apart and hold in a special account for
the benefit of the Trustee individually, the Holders of the Securities of such
Series, the Holders of Coupons, if any appertaining thereto the holders of
other indenture securities (as defined in this Section):
an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such three-month period and valid as against
the Company and its other creditors, except any such reduction resulting from
the receipt or disposition of any property described in clause (ii) below or
from the exercise of any right of set-off which the Trustee could have
exercised if a petition in bankruptcy had been filed by or against the Company
upon the date of such default; and
all property received by the Trustee in respect of any claim as such
creditor, either as security therefor or in satisfaction or composition
thereof or otherwise, after the beginning of such three-month period, or an
amount equal to the proceeds of any such property, if disposed of, subject,
however, to the rights, if any, of the Company and its other creditors in such
property or such proceeds.
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Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (1) payments made on
account of any such claim by any person (other than the
Company) who is liable thereon and (2) the proceeds of the
bona fide sale of any such claim by the Trustee to a third
person and (3) distributions made in cash, securities or other
property in respect of claims filed against the Company in
bankruptcy or receivership or in proceedings for
reorganization pursuant to Title 11 of the United States Code
or applicable state law;
(B) to realize, for its own account, upon any property
held by it as security for any such claim, if such property
was so held prior to the beginning of such three-month period;
(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any property
held by it as security for any such claim, if such claim was
created after the beginning of such three-month period and
such property was received as security therefor simultaneously
with the creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property was so
received the Trustee had no reasonable cause to believe that a
default as defined in subsection (c) below would occur within
three months; or
(D) to receive payment on any claim referred to in
clause (B) or (C), against the release of any property held as
security for such claim as provided in such clause (B) or (C),
as the case may be, to the extent of the fair value of such
property.
For the purposes of clauses (B), (C) and (D) above, property substituted
after the beginning of such three-month period for property held as security
at the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released and, to the
extent that any claim referred to in any of such clauses is created in renewal
of or in substitution for or for the purpose of repaying or refunding any
preexisting claim of the Trustee as such creditor, such claim shall have the
same status as such preexisting claim.
If the Trustee shall be required to establish such account pursuant to
this Section, the funds and property held in such special account and the
proceeds thereof shall be apportioned between the Trustee, the
Securityholders, the Holders of Coupons, if any, appertaining thereto and the
holders of other indenture securities in such manner that the Trustee, such
Securityholders and the holders of other indenture securities realize, as a
result of payments from such special account and payments of dividends (as
defined below) on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to Title 11 of the
United States Code or applicable State law, the same percentage of their
respective claims, figured before crediting to the claim of the Trustee
anything on account of the receipt by it from the Company of the funds and
property in such special account and before crediting to the respective claims
of the Trustee, such Securityholders and the holders of other indenture
securities, dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to Title 11 of the
United States Code or applicable State law, but after crediting thereon
receipts on account of the indebtedness represented by their respective claims
from all sources other than from such dividends and from the funds and
property so held in such special account. As used in this paragraph, with
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respect to any claim, the term "dividends" shall include any distribution with
respect to such claim, in bankruptcy or receivership or in proceedings for
reorganization pursuant to Title 11 of the United States Code or applicable
State law, whether such distribution is made in cash, securities or other
property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceeding for reorganization is pending shall have
jurisdiction (i) to apportion between the Trustee, such Securityholders and
the holders of other indenture securities, in accordance with the provisions
of this paragraph, the funds and the property held in such special account and
the proceeds thereof or (ii) in lieu of such apportionment, in whole or in
part, to give to the provisions of this paragraph due consideration in
determining the fairness of the distributions to be made to the Trustee, such
Securityholders and the holders of other indenture securities with respect to
their respective claims, in which event it shall not be necessary to liquidate
or to appraise the value of any securities or other property held in such
special account or as security for any such claim or to make a specific
allocation of such distributions as between the secured and unsecured portions
of such claims or otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee who has resigned or been removed after the beginning of such
three-month period shall be subject to the provisions of this subsection as
though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three-month period, it
shall be subject to the provisions of this subsection if and only if the
following conditions exist:
(x) the receipt of property or reduction of claim which would
have given rise to the obligation to account, if such Trustee had
continued as trustee, occurred after the beginning of such three-
month period; and
(y) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
There shall be excluded from the operation of this Section a
creditor relationship arising from:
the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or more
at the time of acquisition by the Trustee;
advances authorized by a receivership or bankruptcy court of
competent jurisdiction or by this Indenture for the purpose of preserving any
property which shall at any time be subject to the lien of this Indenture or
of discharging tax liens or other prior liens or encumbrances thereon, if
notice of such advance and of the circumstances surrounding the making thereof
is given to the Securityholders of the applicable Series of Securities and the
Holders of the Coupons, if any, appertaining thereto, at the time and in the
manner provided in this Indenture;
disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar, custodian,
Paying Agent, fiscal agent or depositary or other similar capacity;
an indebtedness created as a result of services rendered or premises
rented or an indebtedness created as a result of goods or securities sold in a
cash transaction as defined in subsection (c)(iii) below;
the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act, as
amended, which is directly or indirectly a creditor of the Company; or
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the acquisition, ownership, acceptance or negotiation of any drafts,
bills of exchange, acceptances or obligations which fall within the
classification of self-liquidating paper as defined in clause (c)(iv) of this
Section.
As used in this Section:
the term "default" means any failure to make payment in full of the
principal of or interest upon any of the Securities or upon the other
indenture securities when and as such principal or interest becomes due and
payable;
the term "other indenture securities" means securities upon which
the Company is an obligor (as defined in the Trust Indenture Act of 1939)
outstanding under any other indenture (A) under which the Trustee is also
trustee, (B) which contains provisions substantially similar to the provisions
of subsection (a) above and (C) under which a default exists at the time of
the apportionment of the funds and property held in said special account;
the term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after delivery
of the goods or securities in currency or in checks or other orders drawn upon
banks or bankers and payable upon demand;
the term "self-liquidating paper" means any draft, bill of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by the
Company for the purpose of financing the purchase, processing, manufacture,
shipment, storage or sale of goods, wares or merchandise and which is secured
by documents evidencing title to, possession of or a lien upon the goods,
wares or merchandise or the receivables or proceeds arising from the sale of
the goods, wares or merchandise previously constituting the security, provided
that the security is received by the Trustee simultaneously with the creation
of the creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange, acceptance
or obligation; and
the term "Company" means any obligor upon the Securities.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.1. Evidence of Action Taken by Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all Series may be embodied
in and evidenced by one or more instruments of substantially similar tenor
signed by such specified percentage of Securityholders in person or by agent
duly appointed in writing; and, except as expressly otherwise provided herein,
such action shall become effective when such instrument or instruments are
delivered to the Trustee. Proof of execution of any instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Sections 6.1 and 6.2) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Article.
The ownership of Registered Securities shall be proved by the
Security register.
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The amount of Unregistered Securities held by any Person executing
any instrument or writing as a Securityholder, the numbers of such
Unregistered Securities and the date of his holding the same may be proved by
the production of such Securities or by a certificate executed by any trust
company, bank, broker or member of a national securities exchange (wherever
situated), as depositary, if such certificate is in form satisfactory to the
Trustee, showing that at the date therein mentioned such Person had on deposit
with such depositary, or exhibited to it, the Unregistered Securities therein
described; or such facts may be proved by the certificate or affidavit of the
Person executing such instrument or writing as a Securityholder, if such
certificate or affidavit is in form satisfactory to the Trustee. The Trustee
and the Company may assume that such ownership of any Unregistered Security
continues until (i) another certificate or affidavit bearing a later date
issued in respect of the same Unregistered Security is produced or (ii) such
Unregistered Security is produced by some other person or (iii) such
Unregistered Security is surrendered in exchange for a Registered Security or
(iv) such Unregistered Security has been cancelled in accordance with Section
2.10.
SECTION 7.2. Proof of Execution of Instruments. Subject to Sections 6.1
and 6.2, the execution of any instrument by a Securityholder or his agent or
proxy may be proved in accordance with such reasonable rules and regulations
as may be prescribed by the Trustee or in such manner as shall be satisfactory
to the Trustee.
SECTION 7.3. Holders to Be Treated as Owners. The Company, the Trustee
and any agent of the Company or the Trustee may deem and treat the person in
whose name any Security shall be registered upon the Security register for
such Series as the absolute owner of such Security (whether or not such
Security shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of or on account
of the principal of and interest on such Security and for all other purposes;
and neither the Company nor the Trustee nor any agent of the Company or the
Trustee shall be affected by any notice to the contrary. All such payments so
made to any such person, or upon his order, shall be valid and, to the extent
of the sum or sums so paid, effectual to satisfy and discharge the liability
for moneys payable upon any such Security.
SECTION 7.4. Securities Owned by Company Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all Series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the
Company or any other obligor on the Securities with respect to which such
determination is being made or by any person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Company or any other obligor on the Securities with respect to which such
determination is being made shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that, for the
purpose of determining whether the Trustee shall be protected in relying on
any such direction, consent or waiver, only Securities which the Trustee knows
are so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Company or any other obligor on the Securities. In case of a dispute as
to such right, the advice of counsel shall be full protection in respect of
any decision made by the Trustee in accordance with such advice. Upon request
of the Trustee, the Company shall furnish to the Trustee promptly an Officers'
Certificate listing and identifying all Securities, if any, known by the
Company to be owned or held by or for the account of any of the above-
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described persons; and, subject to Sections 6.1 and 6.2, the Trustee shall be
entitled to accept such Officers' Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Securities not listed therein
are Outstanding for the purpose of any such determination.
SECTION 7.5. Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 7.1, of
the taking of any action by the Holders of the percentage in aggregate
principal amount of the Securities of any or all Series, as the case may be,
specified in this Indenture in connection with such action, any Holder of a
Security the serial number of which is shown by the evidence to be included
among the serial numbers of the Securities the Holders of which have consented
to such action may, by filing written notice at the Corporate Trust Office and
upon proof of holding as provided in this Article, revoke such action so far
as concerns such Security. Except as aforesaid, any such action taken by the
Holder of any Security shall be conclusive and binding upon such Holder and
upon all future Holders and owners of such Security and of any Securities
issued in exchange or substitution therefor, irrespective of whether or not
any notation in regard thereto is made upon any such Security. Any action
taken by the Holders of the percentage in aggregate principal amount of the
Securities of any or all Series, as the case may be, specified in this
Indenture in connection with such action shall be conclusively binding upon
the Company, the Trustee and the Holders of all the Securities affected by
such action.
SECTION 7.6. Record Date for Determination of Holders Entitled to Vote.
The Company may, in the circumstances permitted by the Trust Indenture Act of
1939, set a record date for the purpose of determining the Securityholders
entitled to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action or to vote on any action, authorized
or permitted to be given or taken by Securityholders. If not set by the
Company prior to the first solicitation of a Securityholder made by any Person
in respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or,
if later, the date of the most recent list of Holders required to be provided
pursuant to Section 4.1) prior to such first solicitation or vote, as the case
may be. With regard to any record date, only the Holders on such date (or
their duly appointed proxies) shall be entitled to give or take or vote on the
relevant action.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION 8.1. Supplemental Indentures Without Consent of Securityholders.
The Company, when authorized by a resolution of its Board of Directors or by
the actions of persons so authorized, and the Trustee for the Securities of
any and all Series may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as in force at the date of the
execution thereof), in form satisfactory to such Trustee, for one or more of
the following purposes:
to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more Series any property or assets;
to evidence the succession of another corporation to the Company, or
successive successions, and the assumption by the successor corporation of the
covenants, agreements and obligations of the Company pursuant to Article IX;
to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions as its Board of Directors and the
Trustee shall consider to be for the protection of the Holders of Securities
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of any or all Series and, if such additional covenants are to be for the
benefit of less than all the Series of Securities stating that such covenants
are being added solely for the benefit of such Series, and to make the
occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions, conditions or provisions an Event of
Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth (and if such additional Events
of Default are to be for the benefit of less than all Series of the Securities
stating that such Events of Default are being added solely for the benefit of
such Series); provided that, in respect of any such additional covenant,
restriction, condition or provision, such supplemental indenture may provide
for a particular period of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide for an
immediate enforcement upon such an Event of Default or may limit the remedies
available to the Trustee upon such an Event of Default or may limit the right
of the Holders of a majority in aggregate principal amount of the Securities
of such Series to waive such an Event of Default;
to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture; or to make such other provisions in regard to matters or questions
arising under this Indenture or under any supplemental indenture as the Board
of Directors may deem necessary or desirable and which shall not materially
and adversely affect the interests of the Holders of the Securities or the
Holders of any Coupons;
to establish the form or terms of Securities of any Series as
permitted by Sections 2.1 and 2.3; or
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 the one Trustee, pursuant to the requirements of
Section 6.11.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
may be executed without the consent of the Holders of any of the Securities at
the time Outstanding, notwithstanding any of the provisions of Section 8.2.
SECTION 8.2. Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Article VII) of the Holders of not
less than a majority in aggregate principal amount of the Securities at the
time Outstanding of each Series affected by such supplemental indenture
(voting as one class), the Company, when authorized by a resolution of its
Board of Directors or by the actions of persons so authorized, and the Trustee
for such Series of Securities may, from time to time and at any time, enter
into an indenture or indentures supplemental hereto (which shall conform to
the provisions of the Trust Indenture Act of 1939 as in force at the date of
execution thereof) for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the Holders
of the Securities of each such Series; provided, however, that no such
supplemental indenture shall (i) extend the final maturity of any Security, or
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reduce the principal amount thereof or any premium thereon, or reduce the rate
or extend the time of payment of interest thereon, or reduce any amount
payable on redemption thereof, or impair or affect the right of any
Securityholder to institute suit for payment thereof or, if the Securities
provide therefor, any right of repayment at the option of the Securityholder,
without the consent of the Holder of each Security so affected, or (ii) reduce
the aforesaid percentage of Securities of any Series, the consent of the
Holders of which is required for any such supplemental indenture, without the
consent of the Holders of each Security so affected.
Upon the request of the Company, accompanied by a copy of a resolution of
the Board of Directors certified by the Secretary or an Assistant Secretary of
the Company authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee for such Series of Securities of evidence of
the consent of Securityholders as aforesaid and other documents, if any,
required by Section 7.1, the Trustee for such Series of Securities shall join
with the Company in the execution of such supplemental indenture unless such
supplemental indenture affects such Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case such Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Company
shall give notice in the manner and to the extent provided in Section 11.4 to
the Holders of Securities of each Series affected thereby at their addresses
as they shall appear on the Securities register of the Company, setting forth
in general terms the substance of such supplemental indenture. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
For the purposes of this Section only, if the Securities of any Series
are issuable upon the exercise of warrants, each holder of an unexercised and
unexpired warrant with respect to such series shall be deemed to be a Holder
of Outstanding Securities of such Series in the amount issuable upon the
exercise of such warrant. For such purposes, the ownership of any such
warrant shall be determined by the Company in a manner consistent with
customary commercial practices. The Trustee for such Series shall be entitled
to rely on an Officers' Certificate as to the principal amount of Securities
of such Series in respect of which consents shall have been executed by
holders of such warrants.
SECTION 8.3. Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and
immunities under this Indenture of the Trustee, the Company and the Holders of
Securities of each Series and Holders of Coupons affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 8.4. Documents to Be Given to Trustee. The Trustee, subject to
the provisions of Sections 6.1 and 6.2, shall receive an Officers' Certificate
and an Opinion of Counsel as conclusive evidence that any supplemental
indenture executed pursuant to this Article complies with the applicable
provisions of this Indenture.
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SECTION 8.5. Notation on Securities in Respect of Supplemental
Indentures. Securities of any Series (including any Coupons appertaining
thereto) authenticated and delivered after the execution of any supplemental
indenture pursuant to the provisions of this Article may bear, upon the
direction of the Company, a notation in form satisfactory to the Trustee for
the Securities of such Series as to any matter provided for by such
supplemental indenture. If the Company or the Trustee shall so determine, new
Securities of any Series and any Coupons appertaining thereto so modified as
to conform, in the opinion of the Trustee and the Board of Directors, to any
modification of this Indenture contained in any such supplemental indenture
may be prepared by the Company, authenticated by the Trustee and delivered in
exchange for the Securities of such Series then Outstanding and any Coupons
appertaining thereto then Outstanding.
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1. Company May Consolidate, etc., on Certain Terms. The
Company may consolidate with, or sell, convey or lease all or substantially
all of its assets to, or merge with or into, any other corporation, provided
that, in any such case, (i) either the Company shall be the continuing
corporation or the successor corporation shall be a corporation organized and
existing under the laws of the United States of America or a State thereof or
the District of Columbia and such successor corporation shall expressly assume
the due and punctual payment of the principal of and interest on all the
Securities and Coupons, if any, according to their tenor and the due and
punctual performance and observance of all of the covenants and conditions of
this Indenture to be performed or observed by the Company by supplemental
indenture satisfactory to the Trustee, executed and delivered to the Trustee
by such corporation, and (ii) the Company or such successor corporation, as
the case may be, shall not, immediately after such merger or consolidation, or
such sale, conveyance or lease, be in default in the performance or observance
of any such covenant or condition.
SECTION 9.2. Successor Corporation Substituted. In case of any such
consolidation, merger, sale, lease or conveyance, and following such an
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it
had been named herein. Such successor corporation may cause to be signed, and
may issue either in its own name or in the name of the Company prior to such
succession any or all of the Securities issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the Trustee; and,
upon the order of such successor corporation instead of the Company and
subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Securities
and Coupons, if any, appertaining thereto, which previously shall have been
signed and delivered by the officers of the Company to the Trustee for
authentication, and any Securities which such successor corporation thereafter
shall cause to be signed and delivered to the Trustee for that purpose. All
of the Securities and Coupons, if any, appertaining thereto, so issued shall
in all respects have the same legal rank and benefit under this Indenture as
the Securities and Coupons, if any, appertaining thereto, theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Securities and Coupons, if any, appertaining thereto, had been issued
at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance such
changes in phraseology and form (but not in substance) may be made in the
Securities and Coupons, if any, appertaining thereto, thereafter to be issued
as may be appropriate.
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In the event of any such sale or conveyance (other than a conveyance by
way of lease) the Company (or any successor corporation which shall
theretofore have become such in the manner described in this Article) shall be
discharged from all obligations and covenants under this Indenture and the
Securities and may be liquidated and dissolved.
SECTION 9.3. Opinion of Counsel to Trustee. The Trustee, subject to the
provisions of Sections 6.1 and 6.2, shall receive an Opinion of Counsel,
prepared in accordance with Section 11.5, as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption, and
any such liquidation or dissolution, complies with the applicable provisions
of this Indenture.
ARTICLE X
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 10.1. Satisfaction and Discharge of Indenture. If at any time
(i) the Company shall have paid or caused to be paid the principal of and
interest on all the Securities of any Series and Coupons, if any, appertaining
thereto Outstanding hereunder (other than Securities and Coupons which have
been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 2.9) as and when the same shall have become due and
payable or (ii) the Company shall have delivered to the Trustee for
cancellation all Securities of any Series and Coupons theretofore
authenticated (other than any Securities of such Series and Coupons which have
been destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.9) or (iii) (A) all the Securities of such Series and
Coupons not theretofore delivered to the Trustee for cancellation shall have
become due and payable or are by their terms to become due and payable within
one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption and (B) the
Company shall have irrevocably deposited or caused to be deposited with the
Trustee as trust funds the entire amount in the currency or currency unit
required (other than moneys repaid by the Trustee or any Paying Agent to the
Company in accordance with Section 10.4) or Government Obligations maturing as
to principal and interest in such amounts and at such times as will ensure the
availability of cash sufficient to pay at maturity or upon redemption all
Securities of such Series and Coupons (other than any Securities of such
Series and Coupons which shall have been destroyed, lost or stolen and which
shall have been replaced or paid as provided in Section 2.9) not theretofore
delivered to the Trustee for cancellation, including principal and interest
due or to become due to such date of maturity as the case may be, and if, in
any such case, the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company with respect to Securities of such Series and
Coupons, then this Indenture shall cease to be of further effect with respect
to Securities of such Series and Coupons (except as to (1) rights of
registration of transfer and exchange and the Company's right of optional
redemption (provided that the Company provides sufficient funds to effect such
optional redemption), (2) substitution of mutilated, defaced, destroyed, lost
or stolen Securities and Coupons, (3) rights of Holders to receive payments of
principal thereof and interest thereon upon the original stated due dates
therefor (but not upon acceleration) and remaining rights of the Holders to
receive mandatory sinking fund payments, if any, (4) the rights, obligations
and immunities of the Trustee hereunder and (5) the rights of the
Securityholders of such Series as beneficiaries hereof with respect to the
property so deposited with the Trustee payable to all or any of them), and,
subject to Section 10.5, the Trustee, on demand of the Company accompanied by
an Officers' Certificate and an Opinion of Counsel and at the cost and expense
of the Company, shall execute proper instruments acknowledging such
satisfaction of and discharging this Indenture with respect to such Series;
provided that the rights of Holders of the Securities and Holders of Coupons
to receive amounts in respect of principal of and interest on the Securities
and Coupons held by them shall
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not be delayed longer than required by then-applicable mandatory rules or
policies of any securities exchange upon which the Securities are listed. The
Company agrees to reimburse the Trustee for any costs or expenses thereafter
reasonably and properly incurred and to compensate the Trustee for any
services thereafter reasonably and properly rendered by the Trustee in
connection with this Indenture, the Securities of such Series and Coupons, if
any.
(i) In addition to the provisions of Section 10.1(a), the Company may,
at its option by or pursuant to, or otherwise in a manner or by such Persons
as may be authorized pursuant to, one or more resolutions duly adopted by the
Board of Directors, at any time with respect to the Securities of any Series,
elect to have either defeasance under subsection (ii) below or covenant
defeasance under subsection (iii) below be applied to the Outstanding
Securities of such Series, provided that provision therefor is made for such
application pursuant to Section 2.3 and the applicable conditions thereto as
set forth in this Section have been satisfied.
(ii) Upon the Company's exercise of the option referenced in subsection
(b)(i) above applicable to this subsection, the Company may terminate its
obligations under the Outstanding Securities of any Series and this Indenture
with respect to such Series on the date the conditions set forth below are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance
means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding Securities of such Series and to
have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense and request of the Company, shall execute proper instruments
acknowledging the same), except for the following: (A) the rights of Holders
of Outstanding Securities of such Series to receive payments in respect of the
principal of and interest on such Securities when such payments are due, (B)
the Company's obligations with respect to such Securities under Sections 2.8,
2.9, 2.11, 3.2, 6.6, 10.4 and 10.5, (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (D) this subsection 10.1(b). Subject
to compliance with this subsection 10.1(b), the Company may exercise its
option under this subsection (ii) notwithstanding the prior exercise of its
option under subsection (iii) below with respect to Securities of such Series.
(iii) Upon the Company's exercise of the option referenced in subsection
(b)(i) above applicable to this subsection, the Company shall be released from
its obligations under Sections 3.7, 3.8, 3.9 and 3.10 with respect to the
Outstanding Securities of such Series on and after the date the conditions set
forth below are satisfied (hereinafter, "covenant defeasance"). For this
purpose, such covenant defeasance means that, with respect to the Outstanding
Securities of such Series, the Company may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in any
such Section, whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or by reason of any reference in any such
Section to any other provision herein or in any other document (including,
without limitation, the form of Securities of such Series), but the remainder
of this Indenture and the rights of each Holder of such Securities shall be
unaffected thereby.
(iv) The following shall be the conditions to the application of either
Section 10.1(b)(ii) or (iii) to the Outstanding Securities of such Series:
(A)the Company shall have irrevocably deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Sections 6.8 and 6.9 who shall agree to comply with
the provisions of this Section 10.1(b) applicable to it) under the
terms of an irrevocable trust agreement in form and substance
reasonably satisfactory to the Trustee, as trust funds in trust
solely for the purpose of making the following payments,
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specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of Securities of such Series, (1) cash in
the currency or currency unit required or (2) Government
Obligations maturing as to principal and interest in such amounts
(payable in the currency in which the Securities of such Series are
payable) and at such times as are sufficient, without consideration
of any reinvestment of such principal or interest, to pay the
principal of and interest on the Outstanding Securities of such
Series and Coupons to maturity or redemption, as the case may be,
or (3) a combination thereof, in each case sufficient, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge, and which shall be applied by
the Trustee (or other qualifying trustee) to pay and discharge, (x)
the principal of and each installment of principal of and interest,
if any, on the Outstanding Securities of such Series on the stated
maturity of such principal or installment of principal or interest,
if any, and (y) any mandatory sinking fund payments or analogous
payments applicable to the Outstanding Securities of such Series on
the day on which such payments are due and payable in accordance
with the terms of this Indenture and of such Securities; such
irrevocable trust agreement shall include, among other things, (1)
provision for the payments referenced in clauses (x) and (y) above,
(2) the payment of the reasonable expenses of the Trustee incurred
or to be incurred in connection with carrying out such trust
provisions, (3) rights of registration, transfer, substitution and
exchange of Securities of such Series and Coupons in accordance
with the terms stated in this Indenture and (4) continuation of the
rights and obligations and immunities of the Trustee as against the
Holders of Securities of such Series as stated in this Indenture;
(B) no Event of Default or event which with notice or lapse
of time or both would constitute an Event of Default with respect
to the Securities of such Series shall have occurred and be
continuing on the date of such deposit or, insofar as Sections
5.1(e) and 5.1(f) are concerned, at any time during the period
ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until
the expiration of such period);
(C) such defeasance or covenant defeasance shall not cause
the Trustee for the Securities of such Series to have a conflicting
interest as defined in Section 6.8 and for purposes of the Trust
Indenture Act of 1939 with respect to any Securities of the
Company;
(D) such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, this
Indenture or any other agreement or instrument to which the Company
is a party or by which it is bound;
(E) such defeasance or covenant defeasance shall not cause
any Outstanding Securities of such Series then listed on any
registered national securities exchange under the Securities
Exchange Act of 1934, as amended, to be delisted;
(F) the Company shall have delivered to the Trustee (i) an
Opinion of Counsel to the effect that either (x) as a result of
such deposit and the related exercise of the Company's option under
this Section 10.1(b) (whether pursuant to subsection (ii) or (iii))
registration will not be required under the Investment Company Act
of 1940, as amended, by the Company, the trust funds representing
such deposit or the Trustee or (y) all necessary registrations
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under such Act have been effected and (2) an Opinion of Counsel to
the effect that Securityholders of such Series will not recognize
income, gain or loss for Federal income tax purposes as a result of
such deposit and discharge and will be subject to Federal income
tax on the same amounts and in the same manner and at the same time
as would have been the case if such deposit and defeasance or
covenant defeasance, as the case may be, had not occurred; the
Trustee may also require that the Opinion of Counsel referred to in
clause (1) state that such deposit and defeasance or covenant
defeasance, as the case may be, does not violate applicable law;
(G) the Company shall have delivered to the Trustee an
Officers' Certificate and Opinion of Counsel, each stating that all
conditions precedent provided for herein relating to the deposit
and defeasance or covenant defeasance, as the case may be,
contemplated by this Section 10.1(b) have been complied with; and
(H) such defeasance or covenant defeasance shall be effected
in compliance with any additional terms, conditions or limitations
which may be imposed on the Company in connection therewith
pursuant to Section 2.3.
SECTION 10.2. Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.4, all moneys deposited with the Trustee
pursuant to Section 10.1 shall be held in trust and applied by it to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent), to the Holders of the particular Securities
of such Series and any Coupons appertaining thereto for the payment or
redemption of which such moneys have been deposited with the Trustee, of all
sums due and to become due thereon for principal and interest; but such money
need not be segregated from other funds except to the extent required by law.
SECTION 10.3. Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to
Securities of any Series or Coupons, all moneys then held by any Paying Agent
(other than the Company) under the provisions of this Indenture with respect
to such Series of Securities or Coupons shall, upon demand of the Company, be
paid to the Trustee and thereupon such Paying Agent shall be released from all
further liability with respect to such moneys.
SECTION 10.4. Return of Unclaimed Moneys Held by Trustee and Paying
Agent. Any moneys deposited with or paid to the Trustee or any Paying Agent
(including the Company acting as its own Paying Agent) for the payment of the
principal of or interest on any Security of any Series or Coupons and not
applied but remaining unclaimed for two years after the date upon which such
principal or interest shall have become due and payable, shall, upon the
written request of the Company and unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law, be
repaid to the Company by the Trustee for such Series or such Paying Agent
(except that with respect to any amounts then held by the Company in trust as
its own Paying Agent no such request need be given and at such time the
Company shall be discharged from its duty to hold such moneys in trust as
Paying Agent), and the Holder of the Security of such Series or Holders of
Coupons appertaining thereto shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property laws,
thereafter look only to the Company for any payment which such Holder may be
entitled to collect and all liability of the Trustee or any Paying Agent with
respect to such moneys shall thereupon cease. Anything in this Article to the
contrary notwithstanding, the Trustee shall deliver or pay to the Company from
time to time upon the written request of the Company any money or Government
Obligations held by it as provided in Section 10.1(b)(iv) which, in the
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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 such defeasance or covenant defeasance, as the case may be, in
accordance with the provisions of this Indenture.
SECTION 10.5. Reinstatement of Company's Obligations. If the Trustee is
unable to apply any funds or Government Obligations in accordance with Section
10.1 by reason of any legal proceeding or by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application or by reason of the Trustee's inability to
convert any such funds or Government Obligations into the currency or currency
unit required to be paid with respect to the Securities of such Series, the
Company's obligations under this Indenture and the Securities of any Series
for which such application is prohibited shall be revived and reinstated as if
no deposit had occurred pursuant to Section 10.1 until such time as the
Trustee is permitted to apply all such funds or Government Obligations in
accordance with Section 10.1 or is able to convert all such funds or
Government Obligations; provided, however, that if the Company has made any
payment of interest on or principal of any of such Securities or Coupons
because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Securityholders of such Securities to receive
such payment from the funds or Government Obligations held by the Trustee.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1. Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, in any Security
or Coupon appertaining thereto, or because of any indebtedness evidenced
thereby, shall be had against any incorporator, as such, or against any past,
present or future stockholder, officer or director, as such, of the Company or
of any successor, either directly or through the Company or any successor,
under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities and Coupons, if any, by the Holders thereof and
as part of the consideration for the issue of the Securities.
SECTION 11.2. Provisions of Indenture for the Sole Benefit of Parties
and Securityholders. Nothing in this Indenture or in the Securities or
Coupons, expressed or implied, shall give or be construed to give to any
Person, firm or corporation, other than the parties hereto, any Paying Agent
and their successors hereunder and the Holders of the Securities and Coupons,
if any, any legal or equitable right, remedy or claim under this Indenture or
under any covenant or provision herein contained, all such covenants and
provisions being for the sole benefit of the parties hereto and their
successors and of the Holders of the Securities and Coupons.
SECTION 11.3. Successors and Assigns of Company Bound by Indenture. All
the covenants, stipulations, promises and agreements in this Indenture
contained by or on behalf of the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 11.4. Notices and Demands on Company, Trustee and
Securityholders. Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee, by
the Holders of Securities or by the Holders of Coupons to or on the Company
may be given or served by being deposited postage prepaid, first-class mail
(except as otherwise specifically provided herein) addressed (until another
address of the Company is filed by the Company with the Trustee) to Cooper
Tire & Rubber Company,
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Lima and Western Avenues, Findlay, Ohio 45840, Attention: Secretary. Any
notice, direction, request or demand by the Company or any Securityholder to
or upon the Trustee shall be deemed to have been sufficiently given or made,
for all purposes, if given or made at the Corporate Trust Office.
Where this Indenture provides for notice to Holders of any event, (i) if
any of the Securities affected by such event are Registered Securities, such
notice shall be sufficiently given (unless otherwise expressly provided
herein) if in writing and mailed by first-class mail, postage prepaid to such
Registered Holders as their names and addresses appear in the Security
register within the time prescribed and (ii) if any of the Securities affected
by such event are Unregistered Securities or Coupon Securities, such notice
shall be sufficiently given (unless otherwise expressly provided herein or in
the terms of any Securities) if published once in a newspaper of general
circulation in each Place of Payment within the time prescribed. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not
be a condition precedent to the validity of any action taken in reliance upon
such waiver. In any case where notice to Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to
any particular Holder shall affect the sufficiency of such notice with respect
to other Holders, and any notice which is mailed in the manner provided herein
shall be conclusively presumed to have been duly given.
In case, by reason of the suspension of or irregularities in regular mail
service, it shall be impracticable to mail notice to the Company and
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
reasonably acceptable to the Trustee shall be deemed to be a sufficient giving
of such notice.
SECTION 11.5. Officers' Certificates and Opinions of Counsel; Statements
to Be Contained Therein. Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, 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 demand
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or demand,
no additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and delivered
to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture (other than certificates provided pursuant to
Section 3.5) shall include (i) a statement that the person making such
certificate or opinion has read such covenant or condition, (ii) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based, (iii) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (iv) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which his certificate, statement or opinion may be based as aforesaid are
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erroneous or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters, information with respect to which is
in the possession of the Company, upon the certificate, statement or opinion
of or representations by an officer or officers of the Company, unless such
counsel knows that the certificate, statement or opinion or representations
with respect to the matters upon which his certificate, statement or opinion
may be based as aforesaid are erroneous or in the exercise of reasonable care
should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Company or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as
the case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants
filed with the Trustee shall contain a statement that such firm is
independent.
SECTION 11.6. Payments Due on Saturdays, Sundays and Holidays. Unless
otherwise specified in a Security, if the date of maturity of interest on or
principal of the Securities of any Series or Coupons appertaining thereto or
the date fixed for redemption or repayment of any such Security or Coupon
shall not be a Business Day, then payment of interest or principal need not be
made on such date, but may be made on the next succeeding Business Day with
the same force and effect as if made on the date of maturity or the date fixed
for redemption, and no interest shall accrue for the period after such date.
SECTION 11.7. Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If any provision of this Indenture limits, qualifies
or conflicts with the duties imposed by any of Sections 310 through 317 of the
Trust Indenture Act of 1939, by the operation of Section 318(c) thereof, such
imposed duties shall control, except as, and to the extent, expressly excluded
from this Indenture, as permitted by the Trust Indenture Act of 1939. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act of 1939 that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or
excluded, as the case may be.
SECTION 11.8. New York Law to Govern. This Indenture and each Security
shall be deemed to be a contract under the laws of the State of New York and
for all purposes shall be construed in accordance with the laws of such State.
SECTION 11.9. Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 11.10. Effect of Headings; Gender. The Article and Section
headings herein and the Table of Contents are for convenience only and shall
not affect the construction hereof. The use of the masculine, feminine or
neuter gender herein shall not limit in any way the applicability of any term
or provision hereof.
SECTION 11.11. Determination of Principal Amount. In determining
whether the Holders of the requisite principal amount of outstanding
Securities of any Series have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, or whether sufficient funds
are available for redemption or for any other purpose, the principal amount of
an Original Issue Discount Security that shall be deemed to be outstanding for
such purposes
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shall be the amount of the principal thereof that would be due and payable as
of the date of such determination upon a declaration of acceleration of the
maturity thereof pursuant to Section 5.1 and the principal amount of any
Securities denominated in a Foreign Currency or ECU that shall be deemed to be
outstanding for such purposes shall be determined by converting the Foreign
Currency or the Specified Amount of each Component Currency into Dollars at
the Market Exchange Rate as of the date of such determination.
ARTICLE XII
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1. Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any Series which are redeemable
before their maturity or to any sinking fund for the retirement of Securities
of a Series except as otherwise specified as contemplated by Section 2.3 for
Securities of such Series.
SECTION 12.2. Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any Series required to be redeemed
or to be redeemed as a whole or in part at the option of the Company shall be
given by giving notice of such redemption as provided in Section 11.4, at
least 30 days and not more than 60 days prior to the date fixed for redemption
to such Holders of Securities of such Series. Failure to give notice by mail,
or any defect in the notice, to the Holder of any Security of a Series
designated for redemption as a whole or in part shall not affect the validity
of the proceedings for the redemption of any other Security of such Series.
The notice of redemption to each such Holder shall specify the date fixed
for redemption, the redemption price, the Place or Places of Payment, that
payment will be made upon presentation and surrender of such Securities and
that, unless otherwise specified in such notice, Coupon Securities, if any,
surrendered for payment must be accompanied by all Coupons maturing subsequent
to the redemption date, failing which the amount of any such missing Coupon or
Coupons will be deducted from the sum due for payment, that such redemption is
pursuant to the mandatory or optional sinking fund, or both, if such be the
case, that interest accrued to the date fixed for redemption will be paid as
specified in such notice and that on and after said date interest thereon or
on the portions thereof to be redeemed will cease to accrue and that, if less
than all of the Outstanding Securities of a Series are to be redeemed, the
identification and principal amount of the Securities to be redeemed. If less
than all of the Securities of any Series are to be redeemed, the notice of
redemption shall specify the numbers of the Securities of such Series to be
redeemed and, if only Unregistered Securities of any Series are to be redeemed
and if such Unregistered Securities may be exchanged for Registered
Securities, the last date on which exchanges of Unregistered Securities for
Registered Securities not subject to redemption may be made. In case any
Security of a Series is to be redeemed in part, the notice of redemption shall
state the portion of the principal amount thereof to be redeemed and shall
state that on and after the date fixed for redemption, upon surrender of such
Security and any Coupons appertaining thereto, a new Security or Securities of
such Series in principal amount equal to the unredeemed portion thereof with
appropriate Coupons will be issued.
The notice of redemption of Securities of any Series to be redeemed at
the option of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company. If
such notice is given by the Company, the Company shall provide notice of such
redemption to the Trustee at least 60 days prior to the date fixed for
redemption.
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Unless otherwise specified pursuant to Section 2.3, (i) in the case of
Securities for which a Place of Payment is located outside the United States
of America, not later than the Business Day immediately prior to the
redemption date specified in the notice of redemption given as provided in
this Section, unless otherwise agreed by the Company and the Trustee, and (ii)
in the case of all other Securities, not later than 10:00 a.m., New York City
time, on the redemption date specified in the notice of redemption given as
provided in this Section, the Company will have on deposit with the Trustee or
with one or more Paying Agents (or, if the Company is acting as its own Paying
Agent, set aside, segregate and hold in trust as provided in Section 3.4) an
amount of money in the currency or currency unit in which the Securities of
such Series and any Coupons appertaining thereto are payable (except as
otherwise specified pursuant to Section 2.3 and except as provided in Sections
2.12(b), (e) and (f)) sufficient to redeem on the redemption date all the
Securities of such Series so called for redemption at the appropriate
redemption price, together with accrued interest to the date fixed for
redemption. If less than all the Outstanding Securities of a Series are to be
redeemed, the Company will deliver to the Trustee at least 60 days prior to
the date fixed for redemption an Officers' Certificate stating the aggregate
principal amount of Securities to be redeemed.
If less than all the Securities of a Series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such Series to be redeemed in whole or in part and the Trustee
shall promptly notify the Company in writing of the Securities of such Series
selected for redemption and, in the case of any Securities of such Series
selected for partial redemption, the principal amount thereof to be redeemed.
However, if less than all the Securities of any Series with differing issue
dates, interest rates and stated maturities are to be redeemed, the Company in
its sole discretion shall select the particular Securities to be redeemed and
shall notify the Trustee in writing thereof at least 45 days prior to the
relevant redemption date. Securities may be redeemed in part in multiples
equal to the minimum authorized denomination for Securities of such Series or
any multiple thereof. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities of
any Series shall relate, in the case of any Security redeemed or to be
redeemed only in part, to the portion of the principal amount of such Security
which has been or is to be redeemed.
SECTION 12.3. Payment of Securities Called for Redemption. If notice of
redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date
and at the place stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption, and on and
after said date (unless the Company shall default in the payment of such
Securities at the redemption price, together with interest accrued to said
date), interest on the Securities or portions of Securities so called for
redemption shall cease to accrue and, except as provided in Sections 6.5 and
10.4, such Securities shall cease from and after the date fixed for redemption
to be entitled to any benefit or security under this Indenture and the Holders
thereof shall have no right in respect of such Securities except the right to
receive the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a Place of
Payment specified in said notice, said Securities or the specified portions
thereof shall be paid and redeemed by the Company at the applicable redemption
price, together with interest accrued thereon to the date fixed for
redemption; provided that, if for any Registered Securities the date fixed for
redemption is a regular interest payment date, payment of interest becoming
due on such date shall be payable to the Holders of such Securities registered
as such on the relevant record date subject to the terms and provisions of
Section 2.7.
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If any Coupon Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing on or after the date fixed for
redemption, such Security may be paid after deducting from the redemption
price an amount equal to the face amount of all such missing Coupons or the
surrender of such missing Coupon or Coupons may be waived by the Company 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 any Paying Agent any 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, unless otherwise provided pursuant to
Section 2.3, interest represented by Coupons shall be payable only upon
presentation and surrender of those Coupons at an office or agency located
outside of the United States.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid or duly provided for,
bear interest from the date fixed for redemption at the rate of interest borne
by the Security.
Upon presentation of any Security redeemed in part only and the Coupons
appertaining thereto, the Company shall execute and the Trustee shall
authenticate and deliver to or on the order of the Holder thereof, at the
expense of the Company, a new Security or Securities and the Coupons
appertaining thereto, of authorized denominations, in principal amount equal
to the unredeemed portion of the Security so presented.
SECTION 12.4. Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and
certificate number in a written statement signed by an authorized officer of
the Company and delivered to the Trustee at least 30 days prior to the last
date on which notice of redemption may be given as being owned of record and
beneficially by, and not pledged or hypothecated by, either (i) the Company or
(ii) an entity specifically identified in such written statement as directly
or indirectly controlling or controlled by or under direct or indirect common
control with the Company.
SECTION 12.5. Mandatory and Optional Sinking Funds. The minimum amount
of any sinking fund payment provided for by the terms of Securities of any
Series is herein referred to as a "mandatory sinking fund payment" and any
payment in excess of such minimum amount provided for by the terms of
Securities of any Series is herein referred to as an "optional sinking fund
payment". The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any Series of Securities in cash, the Company may at its
option (i) deliver to the Trustee Securities of such Series (together with the
unmatured Coupons, if any, appertaining thereto) theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Company or receive credit for Securities of such Series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Company and delivered to the Trustee for cancellation
pursuant to Section 2.10, (ii) receive credit for optional sinking fund
payments (not previously so credited) made pursuant to this Section or (iii)
receive credit for Securities of such Series (not previously so credited)
redeemed by the Company through any optional redemption provision contained in
the terms of such Series. Securities so delivered or credited shall be
received or credited by the Trustee at the sinking fund redemption price
specified in such Securities.
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On or before the 60th day next preceding each sinking fund payment date
for any Series of Securities, the Company will deliver to the Trustee a
written statement (which need not contain the statements required by Section
11.5) signed by an authorized officer of the Company (i) specifying the
portion of the mandatory sinking fund payment to be satisfied by payment of
cash in the currency or currency unit in which the Securities of such Series
and Coupons, if any, appertaining thereto are payable (except as otherwise
specified pursuant to Section 2.3 for the Securities of such Series and except
as provided in Section 2.12(b), (e) and (f)) and the portion to be satisfied
by delivery or credit of Securities of such Series, (ii) stating that none of
the Securities of such Series for which credit is sought has theretofore been
so credited, (iii) stating that no defaults in the payment of interest or
Events of Default with respect to such Series have occurred (which have not
been waived or cured) and are continuing, (iv) stating whether or not the
Company intends to exercise its right to make an optional sinking fund payment
with respect to such Series and, if so, specifying the amount of such optional
sinking fund payment which the Company intends to pay on or before the next
succeeding sinking fund payment date and (v) specifying such sinking fund
payment date. Any Securities of such Series to be credited and required to be
delivered to the Trustee in order for the Company to be entitled to credit
therefor as aforesaid which have not theretofore been delivered to the Trustee
shall be delivered for cancellation pursuant to Section 2.10 to the Trustee
with such written statement (or reasonably promptly thereafter if acceptable
to the Trustee). Such written statement shall be irrevocable and upon its
receipt by the Trustee the Company shall become unconditionally obligated to
make all the cash payments or payments therein referred to, if any, on or
before the next succeeding sinking fund payment date. Failure of the Company,
on or before any such 60th day, to deliver such written statement and
Securities specified in this paragraph, if any, shall not constitute a default
but shall constitute, on and as of such date, the irrevocable election of the
Company (i) that the mandatory sinking fund payment for such Series due on the
next succeeding sinking fund payment date shall be paid entirely in cash (in
the currency or currency unit described above) without the option to deliver
or credit Securities of such Series in respect thereof and (ii) that the
Company will make no optional sinking fund payment with respect to such Series
as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both)
to be made in cash (in the currency or currency unit described above) on the
next succeeding sinking fund payment date plus any unused balance of any
preceding sinking fund payments made in cash shall exceed $100,000, or the
equivalent in the currency or currency unit in which the Securities of such
Series are payable, (or a lesser sum if the Company shall so request) with
respect to the Securities of any particular Series, such cash shall be applied
on the next succeeding sinking fund payment date to the redemption of
Securities of such Series at the sinking fund redemption price together with
accrued interest to the date fixed for redemption. If such amount shall be
$100,000, or the equivalent in the currency or currency unit in which the
Securities of such Series are payable, or less and the Company makes no such
request then it shall be carried over until a sum in excess of $100,000, or
the equivalent in the currency or currency unit in which the Securities of
such Series are payable, is available. The Trustee shall select, in the
manner provided in Section 12.2 and giving effect to any exclusions required
pursuant to Section 12.4, for redemption on such sinking fund payment date a
sufficient principal amount of Securities of such Series to absorb said cash,
as nearly as may be possible, and shall (if requested in writing by the
Company) inform the Company of the serial numbers of the Securities of such
Series (or portions thereof) so selected. The Trustee, in the name and at the
expense of the Company (or the Company, if it shall so notify the Trustee in
writing) shall cause notice of redemption of the Securities of such Series to
be given in substantially the manner provided in Section 12.2 (and with the
effect provided in Section 12.3) for the redemption of Securities of such
Series at the option of the Company. The amount of any sinking fund payments
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not so applied or allocated to the redemption of Securities of such Series
shall be added to the next cash sinking fund payment for such Series and,
together with such payment, shall be applied in accordance with the provisions
of this Section. Any and all sinking fund moneys held on the stated maturity
date of the Securities of any particular Series (or earlier, if such maturity
is accelerated), which are not held for the payment or redemption of
particular Securities of such Series shall be applied, together with other
moneys, if necessary, sufficient for the purpose, to the payment of the
principal of, and interest on, the Securities of such Series at maturity.
Unless otherwise specified pursuant to Section 2.3, (i) in the case of
Securities for which a Place of Payment is located outside the United States
of America, not later than the Business Day immediately prior to the sinking
fund payment date, unless otherwise agreed by the Company and the Trustee, and
(ii) in the case of all other Securities, not later than 10:00 a.m., New York
City time, on the sinking fund payment date, the Company shall have paid to
the Trustee in cash (in the currency or currency unit described in the third
paragraph of this Section) or shall otherwise provide for the payment of all
principal and interest accrued to the date fixed for redemption on Securities
to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a
Series with sinking fund moneys or mail or publish any notice of redemption of
Securities for such Series by operation of the sinking fund during the
continuance of a default in payment of interest on such Securities or of any
Event of Default except that, where the mailing or publication of notice of
redemption of any Securities shall theretofore have been made, the Trustee
shall redeem or cause to be redeemed such Securities, provided that it shall
have received from the Company a sum sufficient for such redemption. Except
as aforesaid, any moneys in the sinking fund for such Series at the time when
any such default or Event of Default shall occur, and any moneys thereafter
paid into the sinking fund, shall, during the continuance of such default or
Event of Default, be deemed to have been collected under Article V and held
for the payment of all such Securities. In case such Event of Default shall
have been waived as provided in Section 5.10 or the default cured on or before
the sixtieth day preceding the sinking fund payment date in any year, such
moneys shall thereafter be applied on the next succeeding sinking fund payment
date in accordance with this Section to the redemption of such Securities.
SECTION 12.6. Repayment at the Option of the Holders. 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 10.1, 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.
ARTICLE XIII
HOLDERS' MEETINGS
SECTION 13.1. Purposes of Meetings. A meeting of Holders of Securities
of any or all Series may be called at any time and from time to time pursuant
to the provisions of this Article for any of the following purposes:
to give any notice to the Company or to the Trustee for the
Securities of such Series, or to give any directions to the Trustee for such
Series, or to consent to the waiving of any default hereunder and its
consequences, or to take any other action authorized to be taken by Holders
pursuant to any of the provisions of Article V;
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to remove the Trustee for such Series and nominate a successor
Trustee pursuant to the provisions of Article VI;
to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 8.2; and
to take any other action authorized to be taken by or on behalf of
the Holders of any specified aggregate principal amount of the Securities of
any one or more or all Series, as the case may be, under any provision of this
Indenture or under applicable law.
SECTION 13.2. Call of Meetings by Trustee. The Trustee for the
Securities of any Series may at any time call a meeting of Holders of
Securities of such Series to take any action specified in Section 13.1, to be
held at such time and at such place in the Borough of Manhattan, The City of
New York or such other Place of Payment as the Trustee for such Series shall
determine. Notice of every meeting of the Holders of Securities of any
Series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given to
Holders of Securities of such Series in the manner and to the extent provided
in Section 11.4. Such notice shall be given not less than 20 nor more than 90
days prior to the date fixed for such meeting.
SECTION 13.3. Call of Meetings by Company or Holders. In case at any
time the Company, pursuant to a resolution of its Board of Directors, or the
Holders of at least 10% in aggregate principal amount of the Outstanding
Securities of any or all Series, as the case may be, shall have requested the
Trustee for such Series to call a meeting of Holders of Securities of any or
all Series, as the case may be, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting and the Trustee for such
Series shall not have given the notice of such meeting within 20 days after
receipt of such request, then the Company or such Holders may determine the
time and the place in the Borough of Manhattan, The City of New York or such
other Place of Payment for such meeting and may call such meeting to take any
action authorized in Section 13.1, by giving notice thereof as provided in
Section 13.2.
SECTION 13.4. Qualifications for Voting. To be entitled to vote at any
meeting of Holders, a person shall be (i) a Holder of one or more Securities
with respect to which such meeting is being held or (ii) a person appointed by
an instrument in writing as proxy by such Holder. The only persons who shall
be entitled to be present or to speak at any meeting of Holders shall be the
persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee for the Securities of the Series with respect
to which such meeting is being held and its counsel and any representatives of
the Company and its counsel.
SECTION 13.5. Regulations. Notwithstanding any other provisions of this
Indenture, the Trustee for the Securities of any Series may make such
reasonable regulations as it may deem advisable for any meeting of Holders of
the 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 think fit.
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 the Securities of such Series as provided in Section
13.3, in which case the Company or the Holders calling the meeting, as the
case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by majority
vote of the meeting.
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At any meeting each Holder of Securities with respect to which such
meeting is being held or proxy therefor shall be entitled to one vote for each
$1,000 (or the equivalent in the currency or currency unit in which such
Securities are denominated) principal amount (or in the case of the Original
Issue Discount Securities, such principal amount as shall be determined in
accordance with the terms thereof) of Securities held or represented by him.
However, no vote shall be cast or counted at any meeting in respect of any
such Security challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote other than by virtue of the Securities of such Series held by
him or instruments in writing aforesaid duly designating him as the person to
vote on behalf of other Holders of such Series. At any meeting of Holders,
the presence of persons holding or representing Securities with respect to
which such meeting is being held in an aggregate principal amount sufficient
to take action on the business for the transaction of which such meeting was
called shall constitute a quorum, but, if less than a quorum is present, the
persons holding or representing a majority in aggregate principal amount of
such Securities represented at the meeting may adjourn such meeting with the
same effect, for all intents and purposes, as though a quorum had been
present. Any meeting of Holders of Securities with respect to which a meeting
was duly called pursuant to the provisions of Section 13.2 or Section 13.3 may
be adjourned from time to time by a majority of such Holders present, whether
or not constituting a quorum, and the meeting may be held as so adjourned
without further notice.
SECTION 13.6. Voting. The vote upon any resolution submitted to any
meeting of Holders of Securities with respect to which such meeting is being
held shall be by written ballots on which shall be subscribed the signatures
of such Holders or of their representatives by proxy and the serial number or
numbers of the Securities held or represented by them. The permanent chairman
of the meeting shall appoint two inspectors of votes who shall count all votes
cast at the meeting for or against any resolution and who shall make and file
with the secretary of the meeting their verified written reports in duplicate
of all votes cast at the meeting. A record in duplicate of the proceedings of
each meeting of Holders shall be prepared by the secretary of the meeting and
there shall be attached to such 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 such notice was given in the manner and to the
extent provided in Section 11.4. The record shall show the serial numbers of
the Securities voting in favor of and against any resolution. The record
shall be signed and verified by the affidavits of the permanent chairman and
secretary of the meeting and one of the duplicates shall be delivered to the
Company and the other to the Trustee to be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 13.7. No Delay of Rights by Meeting. Nothing in this Article
shall be deemed or construed to authorize or permit, by reason of any call of
a meeting of Holders or any rights expressly or impliedly conferred hereunder
to make such call, any hindrance or delay in the exercise of any right or
rights conferred upon or reserved to the Trustee or to the Holders under any
of the provisions of this Indenture or of the Securities of any Series.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereto affixed and
attested, all as of the day and year first above written.
COOPER TIRE & RUBBER COMPANY
By: \S\
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
By: \S\
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
ATTEST:
By: \S\
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
THE CHASE MANHATTAN BANK,
as Trustee
By: \S\
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
ATTEST:
By: \S\
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
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Exhibit 5
---------
October 15, 1999
COOPER TIRE & RUBBER COMPANY
Lima & Western Avenues
Findlay, Ohio 45840
Re: Cooper Tire & Rubber Company
Registration Statement on Form S-3
----------------------------------
Ladies and Gentleman:
Reference is made to the Registration Statement on Form S-3 (the
"Registration Statement") which Cooper Tire & Rubber Company (the "Company")
is filing with the Securities and Exchange Commission on the date hereof, with
respect to the proposed sale of the following securities of the Company (the
"Securities): (i) one or more series of debt securities (the "Debt
Securities"), (ii) common stock, par value $1.00 per share (the "Common
Stock"), (iii) one or more series of preferred stock, par value $1.00 per
share (the "Preferred Stock"), which may be represented by depositary shares,
and (iv) one or more series of warrants to purchase Debt Securities, Common
Stock or Preferred Stock (the "Warrants").
Each series of the Debt Securities will be issued under an Indenture
dated as of March 17, 1997 (the "Indenture"), between the Company and The
Chase Manhattan Bank, as Trustee. Each series of the Preferred Stock will be
issued under the Company's Restated Certificate of Incorporation and a
Certificate of Designations with respect to such series. The Common Stock
will be issued under the Company's Restated Certificate of Incorporation. The
Warrants will be issued under one or more warrant agreements (each, a "Warrant
Agreement"), each to be entered into between the Company and a financial
institution identified therein as a warrant agent. Certain terms of the
Securities to be issued by the Company from time to time will be approved by
the Board of Directors of the Company or a committee thereof as part of the
corporate action taken and to be taken in connection with the authorization of
the issuance of the Securities (the "Corporate Proceedings").
I have examined originals or copies, certified or otherwise identified to
my satisfaction, of the Company's Restated Certificate of Incorporation, the
Company's bylaws, resolutions of the Company's Board of Directors, and such
Company records, certificates and other documents and such questions of law as
I considered necessary or appropriate for the purpose of this opinion. In
rendering this opinion, I have assumed the genuineness of all signatures, the
authenticity of all documents submitted to me as originals and the conformity
to authentic original documents of all documents submitted to me as copies.
Based upon and subject to the foregoing and to the assumptions,
conditions and limitations set forth herein, I am of the opinion that:
(1) when the Registration Statement becomes effective under the
Securities Act of 1933, as amended (the "Act"), and upon the completion of the
Corporate Proceedings relating to a series of the Debt Securities and the due
execution, authentication, issuance and delivery of the Debt Securities of
such series, the Debt Securities of such series, when sold in exchange for the
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consideration set forth in the Prospectus contained in the Registration
Statement and any Prospectus Supplement relating to such series of the Debt
Securities or upon exercise of Warrants in accordance with their terms, will
be duly authorized and will be binding obligations of the Company, enforceable
against the Company in accordance with their terms and entitled to the
benefits of the Indenture, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally and subject to general principles of equity;
(2) when the Registration Statement becomes effective under the Act and
upon the completion of the Corporate Proceedings relating to a series of the
Preferred Stock, the execution, delivery and filing with, and recording by,
the Secretary of State of Delaware of the Certificate of Designations relating
to such series of the Preferred Stock and the due execution, countersignature
and delivery of certificates representing the shares of the Preferred Stock of
such series, the Preferred Stock of such series, when sold in exchange for the
consideration set forth in the Prospectus and any Prospectus Supplement
relating to such series of the Preferred Stock or upon exercise of Warrants or
conversion of other Securities in accordance with their terms, will be duly
authorized, legally issued, fully paid and nonassessable;
(3) when the Registration Statement becomes effective under the Act and
upon the completion of the Corporate Proceedings relating to the Common Stock
and the due execution, countersignature and delivery of certificates
representing the shares of the Common Stock, the Common Stock, when sold in
exchange for the consideration set forth in the Prospectus and any Prospectus
Supplement relating to the Common Stock or upon exercise of Warrants or
conversion of other Securities in accordance with their terms, will be duly
authorized, legally issued, fully paid and nonassessable; and
(4) when the Registration Statement becomes effective under the Act and
when a series of the Warrants has been duly established pursuant to the
relevant Warrant Agreement and upon the completion of the Corporate
Proceedings relating to such series of the Warrants and the due execution,
authentication, issuance and delivery of the Warrants of such series, the
Warrants of such series, when sold in exchange for the consideration set forth
in the Prospectus and any Prospectus Supplement relating to such series of the
Warrants, will be duly authorized and will be binding obligations of the
Company enforceable against the Company in accordance with their terms and
entitled to the benefits of such Warrant Agreement, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally and subject to general
principles of equity.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference made to me under the caption
"Legal Matters" in the Registration Statement.
Respectfully submitted,
COOPER TIRE & RUBBER COMPANY
Richard D. Teeple
Vice President and General Counsel
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Exhibit 12.1
COOPER TIRE & RUBBER COMPANY
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
SIX SIX
MONTHS MONTHS
YEARS ENDED DECEMBER 31 ENDED ENDED
-------------------------------------------- JUNE 30, JUNE 30,
1994 1995 1996 1997 1998 1998 1999
-------- -------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Consolidated income
before income taxes $208,119 $180,070 $172,092 $194,792 $198,217 $ 94,033 $109,221
Add:
Interest and
amortization of
debt expense 2,680 697 1,654 15,655 15,224 7,613 7,499
Interest portion
of rental expense 2,078 2,232 2,414 3,693 4,849 2,509 2,243
------- ------- ------- ------- ------- ------- -------
Total earnings $212,877 $182,999 $176,160 $214,140 $218,290 $104,155 $118,963
======= ======= ======= ======= ======= ======= =======
Fixed charges:
Interest and
amortization of
debt expense $ 2,680 $ 697 $ 1,654 $ 15,655 $ 15,224 $ 7,613 $ 7,499
Capitalized interest 1,170 2,694 4,315 1,628 1,694 1,017 940
Interest portion
of rental expense 2,078 2,232 2,414 3,693 4,849 2,509 2,243
------- ------- ------- ------- ------- ------- -------
Total fixed charges $ 5,928 $ 5,623 $ 8,383 $ 20,976 $ 21,767 $ 11,139 $ 10,682
======= ======= ======= ======= ======= ======= =======
Ratio of earnings to
fixed charges 35.9x 32.5x 21.0x 10.2x 10.0x 9.4x 11.1x
</TABLE>
105
<PAGE>
Exhibit 12.2
COOPER TIRE & RUBBER COMPANY
COMPUTATION OF RATIO OF EARNINGS TO COMBINED FIXED
CHARGES AND PREFERRED STOCK DIVIDENDS
<TABLE>
<CAPTION>
SIX SIX
MONTHS MONTHS
YEARS ENDED DECEMBER 31 ENDED ENDED
-------------------------------------------- JUNE 30, JUNE 30,
1994 1995 1996 1997 1998 1998 1999
-------- -------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Consolidated income
before income taxes $208,119 $180,070 $172,092 $194,792 $198,217 $ 94,033 $109,221
Add:
Interest and
amortization of
debt expense 2,680 697 1,654 15,655 15,224 7,613 7,499
Interest portion
of rental expense 2,078 2,232 2,414 3,693 4,849 2,509 2,243
------- ------- ------- ------- ------- ------- -------
Total earnings $212,877 $182,999 $176,160 $214,140 $218,290 $104,155 $118,963
======= ======= ======= ======= ======= ======= =======
Fixed charges:
Interest and
amortization of
debt expense $ 2,680 $ 697 $ 1,654 $ 15,655 $ 15,224 $ 7,613 $ 7,499
Capitalized interest 1,170 2,694 4,315 1,628 1,694 1,017 940
Interest portion
of rental expense 2,078 2,232 2,414 3,693 4,849 2,509 2,243
Preferred stock
dividends 0 0 0 0 0 0 0
------- ------- ------- ------- ------- ------- -------
Total fixed charges
and preferred stock
dividends $ 5,928 $ 5,623 $ 8,383 $ 20,976 $ 21,767 $ 11,139 $ 10,682
======= ======= ======= ======= ======= ======= =======
Ratio of earnings to
combined fixed charges
and preferred stock
dividends 35.9x 32.5x 21.0x 10.2x 10.0x 9.4x 11.1x
</TABLE>
106
<PAGE
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3 No. 333-00000) and related Prospectus of
Cooper Tire & Rubber Company for the registration of securities not to exceed
an initial public offering price of $1,200,000,000 and to the incorporation by
reference therein of our reports (a) dated February 9, 1999, with respect to
the consolidated financial statements and schedule of Cooper Tire & Rubber
Company included in its Annual Report (Form 10-K) and (b) dated May 14, 1999,
with respect to the financial statements and schedules of the Cooper Tire &
Rubber Company Thrift and Profit Sharing Plan, the Cooper Tire & Rubber
Company Pre-Tax Savings Plan (Texarkana), the Cooper Tire & Rubber Company
Pre-Tax Savings Plan (Auburn), the Cooper Tire & Rubber Company Pre-Tax
Savings Plan (Findlay), the Cooper Tire & Rubber Company Pre-Tax Savings Plan
(El Dorado), the Cooper Tire & Rubber Company Pre-Tax Savings Plan (Bowling
Green - Hose), and the Cooper Tire & Rubber Company Pre-Tax Savings Plan
(Bowling Green - Sealing) included in Amendment No. 1 to the Annual Report
(Form 10-K/A), both for the year ended December 31, 1998, filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
Toledo, Ohio
October 15, 1999
107
<PAGE>
Exhibit 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated July 22, 1999 and
August 23, 1999 included in The Standard Products Company's Form 10-K for the
year ended June 30, 1999 and to all references to our Firm included in this
registration statement.
ARTHUR ANDERSEN LLP
Detroit, Michigan,
October 13, 1999.
108
<PAGE>
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, in the capacities
indicated, do hereby constitute and appoint Patrick W. Rooney, or Thomas A.
Dattilo, or John Fahl, or Stan C. Kaiman as their attorney with full power of
substitution and resubstitution for and in their name, place and stead, to
sign and file with the Securities and Exchange Commission one or more
Registration Statements on Form S-3 pursuant to the Securities Act of 1933, as
amended, for the purpose of registering securities of the Company and any and
all amendments to said Registration Statement(s) whether such amendments are
filed prior or subsequent to the effective date thereof and any exhibits
thereto and to file any supplement to any prospectus related thereto and any
and all applications, instruments or documents to be filed with the Securities
and Exchange Commission pertaining to such securities or such registration(s),
with full power and authority to do and perform any and all acts and things
whatsoever requisite and necessary to be done in the premises, hereby
ratifying and approving the acts of said attorney or any such substitute.
Executed as of October 7, 1999.
- -------------------------------- --------------------------------
Arthur H. Aronson, Director Thomas A. Dattilo, President,
Principal Operating Officer,
Director
- -------------------------------- --------------------------------
Edsel D. Dunford, Director John Fahl, Director
- -------------------------------- --------------------------------
Deborah M. Fretz, Director Dennis J. Gormley, Director
- -------------------------------- --------------------------------
Stan C. Kaiman, Secretary John F. Meier, Director
- -------------------------------- --------------------------------
Byron O. Pond, Director Patrick W. Rooney, Chairman of
The Board, Principal Executive
Officer, and Director
- -------------------------------- --------------------------------
John H. Shuey, Director Philip G. Weaver, Vice President
and Principal Financial Officer
- --------------------------------
Eileen B. White, Principal
Accounting Officer and
Corporate Controller
109
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that Cooper Tire & Rubber Company, a Delaware
corporation (the "Corporation"), hereby constitutes and appoints Patrick W.
Rooney, or Thomas A. Dattilo, or John Fahl, or Stan C. Kaiman as its attorney
with full power of substitution and resubstitution for and in its name, place
and stead, to sign and file with the Securities and Exchange Commission one or
more Registration Statements on Form S-3 pursuant to the Securities Act of
1933, as amended, for the purpose of registering securities of the Company and
any and all amendments to said Registration Statement(s) whether such
amendments are filed prior or subsequent to the effective date thereof, or any
amendments to any exhibits thereto or to file any supplement to any prospectus
related thereto and any and all applications, instruments or documents to be
filed with the Securities and Exchange Commission pertaining to such
securities or such registration(s), with full power and authority to do and
perform any and all acts and things whatsoever requisite and necessary to be
done in the premises, hereby ratifying and approving the acts of said attorney
or any such substitute.
Executed as of October 15, 1999.
COOPER TIRE & RUBBER COMPANY
- --------------------------------
Patrick W. Rooney, Chairman of the
Board and Chief Executive Officer
- --------------------------------
Stan C. Kaiman, Secretary
110
<PAGE>
Exhibit 25
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
Cooper Tire & Rubber Company
(Exact name of obligor as specified in its charter)
Delaware 34-4297750
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
Lima & Western Avenue 45840
Findlay, Ohio (Zip Code)
(Address of principal executive offices)
Debt Securities
(Title of the indenture securities)
111
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New
York 12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
112
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of
Amendment dated February 17, 1969, August 31, 1977, December 31, 1980,
September 9, 1982, February 28, 1985, December 2, 1991 and July 10, 1996 (see
Exhibit 1 to Form T-1 filed in connection with Registration Statement No.
333-06249, which is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York and State of New York, on the 15th day
of October, 1998.
THE CHASE MANHATTAN BANK
By /s/
-------------------------
F. Springer
Assistant Vice President
113
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 1999, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
Dollar Amounts
<CAPTION>
ASSETS in Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin . . . . . . . . . . . . . . . . . . . . $ 13,119
Interest-bearing balances . . . . . . . . . . . . . . . . 6,761
Securities:
Held to maturity securities. . . . . . . . . . . . . . . . . 892
Available for sale securities. . . . . . . . . . . . . . . . 42,965
Federal funds sold and securities purchased under
agreements to resell. . . . . . . . . . . . . . . . . . . 32,277
Loans and lease financing receivables:
Loans and leases, net of unearned income $130,602
Less: Allowance for loan and lease losses 2,551
Less: Allocated transfer risk reserve 0
-------
Loans and leases, net of unearned income,
allowance, and reserve. . . . . . . . . . . . . . . . . . 128,051
Trading Assets . . . . . . . . . . . . . . . . . . . . . . . 41,426
Premises and fixed assets (including capitalized leases. . . 3,190
Other real estate owned. . . . . . . . . . . . . . . . . . . 28
Investments in unconsolidated subsidiaries and
associated companies. . . . . . . . . . . . . . . . . . . 182
Customers' liability to this bank on acceptances
outstanding . . . . . . . . . . . . . . . . . . . . . . . 901
Intangible assets. . . . . . . . . . . . . . . . . . . . . . 2,010
Other assets . . . . . . . . . . . . . . . . . . . . . . . . 14,567
-------
TOTAL ASSETS . . . . . . . . . . . . . . . . . . . . . . . . $286,369
=======
114
<PAGE>
LIABILITIES
Deposits
In domestic offices . . . . . . . . . . . . . . . . . . . $101,979
Noninterest-bearing . . . . . . . . $42,241
Interest-bearing. . . . . . . . . . 59,738
------
In foreign offices, Edge and Agreement
subsidiaries and IBF's . . . . . . . . . . . . . . . . 76,395
Noninterest-bearing . . . . . . . . $ 4,645
Interest-bearing. . . . . . . . . . . . . . . . . . . . . 71,750
Federal funds purchased and securities sold under
agreements to repurchase . . . . . . . . . . . . . . . . . . 36,604
Demand notes issued to the U.S. Treasury . . . . . . . . . . 1,001
Trading liabilities. . . . . . . . . . . . . . . . . . . . . 30,287
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less . . . . . . 3,606
With a remaining maturity of more than one year
through three years . . . . . . . . . . . . . . . . . . . 14
With a remaining maturity of more than three years. . . . 91
Bank's liability on acceptances executed and outstanding . . 901
Subordinated notes and debentures. . . . . . . . . . . . . . 5,427
Other liabilities. . . . . . . . . . . . . . . . . . . . . . 11,247
TOTAL LIABILITIES. . . . . . . . . . . . . . . . . . . . . . 267,552
-------
EQUITY CAPITAL
Perpetual preferred stock and related surplus. . . . . . . . 0
Common stock . . . . . . . . . . . . . . . . . . . . . . . . 1,211
Surplus (exclude all surplus related to preferred stock) . . 11,016
Undivided profits and capital reserves . . . . . . . . . . . 7,317
Net unrealized holding gains (losses)
on available-for-sale securities . . . . . . . . . . . . . . (743)
Accumulated net gains (losses) on cash flow hedges . . . . . 0
Cumulative foreign currency translation adjustments. . . . . 16
TOTAL EQUITY CAPITAL . . . . . . . . . . . . . . . . . . . . 18,817
-------
TOTAL LIABILITIES AND EQUITY CAPITAL $286,369
=======
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with
the instructions issued by the appropriate Federal regulatory authority and is
true to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and
correct.
WALTER V. SHIPLEY )
WILLIAM B. HARRISON, JR. ) DIRECTORS
FRANK A. BENNACK, JR. )
115
<PAGE>
