<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report: January 25, 1995
------------------
(Date of earliest event reported)
CROWN CORK & SEAL COMPANY, INC.
-------------------------------------------------------------
(Exact Name of Registrant as Specified in its Charter)
Pennsylvania 1-2227 23-1526444
---------------- ----------- ------------
(State of Incorporation) (Commission File Number) (I.R.S. Employer
Identification No.)
9300 Ashton Road
Philadelphia, Pennsylvania 19136
(215) 698-5100
(Address of Registrant's Principal Executive
Offices and telephone number, including area code)
<PAGE>
Item 5. Other Events.
- ---------------------
On January 25, 1995, Crown Cork & Seal Company, Inc. (the "Company")
issued $300 million of public debt securities consisting of $300 million
aggregate principal amount of 8-3/8% Notes due 2005 (the "Notes"). The Notes
were sold on January 18, 1995 pursuant to a shelf registration statement
previously filed with the Securities and Exchange Commission. A copy of the
form of the Notes is attached hereto as Exhibit 99a. A copy of the Officers'
Certificate of the Company dated January 25, 1995, by which the Company
established the Notes and specified their terms is attached hereto as Exhibit
99b. A copy of the Indenture dated as of January 15, 1995 between the Company,
as issuer, and Chemical Bank, as trustee (the "Trustee"), is attached hereto as
Exhibit 4. A copy of the Terms Agreement dated as of January 18, 1995 between
Salomon Brothers Inc, CS First Boston Corporation, J.P. Morgan Securities Inc.
and the Company is attached hereto as Exhibit 99c. Exhibits 4 and 99a through
99c are hereby incorporated by reference in this Form 8-K.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
- ----------------------------------------------------------------------------
(c) Exhibits
4. Indenture dated as of January 15, 1995 between the Company and the
Trustee.
99a. Form of the Company's 8-3/8% Notes Due 2005.
99b. Officers' Certificate of the Company dated January 25, 1995.
99c. Terms Agreement dated January 18, 1995.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CROWN CORK & SEAL COMPANY, INC.
Date: January 31, 1995 By: /s/ Craig R. L. Calle
----------------------------
Craig R. L. Calle
Vice President and Treasurer
<PAGE>
Exhibit Index
Exhibit No. Description of Exhibit
- ----------- ----------------------
4. Indenture dated as of January 15, 1995 between the Company and the
Trustee.
99a. Form of the Company's 8-3/8% Notes Due 2005.
99b. Officers' Certificate of the Company dated January 25, 1995.
99c. Terms Agreement dated January 18, 1995.
<PAGE>
- --------------------------------------------------------------------------------
CROWN CORK & SEAL COMPANY, INC.,
as Issuer,
TO
CHEMICAL BANK,
as Trustee
-------------
INDENTURE
DATED AS OF JANUARY 15, 1995
-------------
- --------------------------------------------------------------------------------
<PAGE>
Reconciliation and tie between Trust Indenture Act of 1939 and Indenture, dated
as of January 15, 1995.
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<CAPTION>
Trust Indenture Act Section Indenture Section
- --------------------------- -----------------
<S> <C>
(S) 310(a)(1)................................................. 6.9
(a)(2)................................................. 6.9
(a)(3)................................................. N\A
(a)(4)................................................. N\A
(a)(5)................................................. 6.9
(b).................................................... 6.8, 6.10
(S) 311(a).................................................... 6.13(a)
(b).................................................... 6.13(b)
(b)(2)................................................. 7.3(a)(2), 7.3(b)
(S) 312(a).................................................... 7.1,7.2(a)
(b).................................................... 7.2(b)
(c).................................................... 7.2(c)
(S) 313(a).................................................... 7.3(a)
(b).................................................... 7.3(b)
(c).................................................... 7.3(a), 7.3(b)
(d).................................................... 7.3(c)
(S) 314(a).................................................... 7.4
(b).................................................... N\A
(c)(1)................................................. 1.2
(c)(2)................................................. 1.2
(c)(3)................................................. N\A
(d).................................................... N\A
(e).................................................... 1.2
(S) 315(a).................................................... 6.1(a)
(b).................................................... 6.2, 7.3(a)(6)
(c).................................................... 6.1(b)
(d).................................................... 6.1(c)
(d)(1)................................................. 6.1(a)(1)
(d)(2)................................................. 6.1(c)(2)
(d)(3)................................................. 6.1(c)(3)
(3).................................................... 5.14
(S) 316(a)(1)................................................. 1.1
(a)(1)(A).............................................. 5.2, 5.12
(a)(1)(B).............................................. 5.13
(b).................................................... 5.8
(S) 317(a)(1)................................................. 5.3
(a)(2)................................................. 5.4
(b).................................................... 10.3
(S) 318(a).................................................... 1.7
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________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS/1/
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PARTIES................................................................ 1
RECITALS............................................................... 1
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 Definitions............................................... 1
-----------
SECTION 1.2 Compliance Certificates and Opinions...................... 9
------------------------------------
SECTION 1.3 Form of Documents Delivered to Trustee.................... 9
--------------------------------------
SECTION 1.4 Acts of Holders........................................... 10
---------------
SECTION 1.5 Notices, etc., to Trustee and Company..................... 11
-------------------------------------
SECTION 1.6 Notice to Holders; Waiver................................. 11
-------------------------
SECTION 1.7 Conflict with Trust Indenture Act......................... 12
---------------------------------
SECTION 1.8 Effect of Headings and Table of Contents.................. 12
----------------------------------------
SECTION 1.9 Successors and Assigns.................................... 12
----------------------
SECTION 1.10 Separability Clause....................................... 12
-------------------
SECTION 1.11 Benefits of Indentures.................................... 12
----------------------
SECTION 1.12 Governing Law............................................. 12
-------------
SECTION 1.13 Legal Holidays............................................ 13
--------------
SECTION 1.14 Certain Matters Relating to Currencies.................... 13
--------------------------------------
SECTION 1.15 Indenture and Securities Solely
-------------------------------
Corporate Obligations .................................. 13
---------------------
SECTION 1.16 Execution in Counterparts ................................ 14
-------------------------
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/1/ Note: This table of contents shall not, for any purpose, be deemed to
be a part of this Indenture.
<PAGE>
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ARTICLE II
SECURITY FORMS
SECTION 2.1 Forms Generally........................................... 14
---------------
SECTION 2.2 Form of Face of Security.................................. 14
------------------------
SECTION 2.3 Form of Reverse of Security............................... 17
---------------------------
SECTION 2.4 Form of Trustee's Certificate of
--------------------------------
Authentication.......................................... 21
--------------
ARTICLE III
THE SECURITIES
SECTION 3.1 Amount Unlimited; Issuable in Series...................... 21
------------------------------------
SECTION 3.2 Denominations............................................. 24
-------------
SECTION 3.3 Execution, Authentication, Delivery
-----------------------------------
and Dating.............................................. 24
----------
SECTION 3.4 Temporary Securities...................................... 25
--------------------
SECTION 3.5 Registration, Registration of Transfer
--------------------------------------
and Exchange............................................ 26
------------
SECTION 3.6 Mutilated, Destroyed, Lost and
------------------------------
Stolen Securities....................................... 27
-----------------
SECTION 3.7 Payment of Interest; Interest Rights
------------------------------------
Preserved............................................... 28
---------
SECTION 3.8 Persons Deemed Owners..................................... 29
---------------------
SECTION 3.9 Cancellation.............................................. 29
------------
SECTION 3.10 Computation of Interest................................... 30
-----------------------
SECTION 3.11 Global Securities......................................... 30
-----------------
SECTION 3.12 Payment to be in Proper Currency.......................... 32
--------------------------------
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ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Securities
----------------------------------------
of any Series........................................... 33
-------------
SECTION 4.2 Application of Trust Money................................ 35
--------------------------
SECTION 4.3 Satisfaction and Discharge of Indenture................... 36
---------------------------------------
SECTION 4.4 Reinstatement............................................. 36
-------------
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default......................................... 37
-----------------
SECTION 5.2 Acceleration of Maturity; Rescission and
----------------------------------------
Annulment............................................... 39
---------
SECTION 5.3 Collection of Indebtedness and Suits
------------------------------------
for Enforcement by Trustee.............................. 40
--------------------------
SECTION 5.4 Trustee May File Proofs of Claim.......................... 41
--------------------------------
SECTION 5.5 Trustee May Enforce Claims Without Possession
---------------------------------------------
of Securities........................................... 41
-------------
SECTION 5.6 Application of Money Collected............................ 42
------------------------------
SECTION 5.7 Limitation on Suits....................................... 42
-------------------
SECTION 5.8 Unconditional Right of Holders to Receive
-----------------------------------------
Principal, Premium and Interest......................... 43
-------------------------------
SECTION 5.9 Restoration of Rights and Remedies........................ 43
----------------------------------
SECTION 5.10 Rights and Remedies Cumulative............................ 43
------------------------------
SECTION 5.11 Delay or Omission Not Waiver.............................. 44
----------------------------
SECTION 5.12 Control by Holders........................................ 44
------------------
SECTION 5.13 Waiver of Past Defaults................................... 44
-----------------------
SECTION 5.14 Undertaking for Costs..................................... 44
---------------------
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SECTION 5.15 Waiver of Stay or Extension Laws.......................... 45
--------------------------------
ARTICLE VI
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities....................... 45
-----------------------------------
SECTION 6.2 Notice of Defaults........................................ 47
------------------
SECTION 6.3 Certain Rights of Trustee................................. 47
-------------------------
SECTION 6.4 Not Responsible for Recitals or Issuance
----------------------------------------
of Securities........................................... 48
-------------
SECTION 6.5 May Hold Securities....................................... 48
-------------------
SECTION 6.6 Money Held in Trust....................................... 48
-------------------
SECTION 6.7 Compensation and Reimbursement............................ 49
------------------------------
SECTION 6.8 Qualification of Trustee;
-------------------------
Conflicting Interests................................... 49
---------------------
SECTION 6.9 Corporate Trustee Required;
---------------------------
Eligibility............................................. 49
-----------
SECTION 6.10 Resignation and Removal;
------------------------
Appointment of Successor................................ 50
------------------------
SECTION 6.11 Acceptance of Appointment by
----------------------------
Successor............................................... 52
---------
SECTION 6.12 Merger, Conversion, Consolidation or
------------------------------------
Succession to Business.................................. 53
----------------------
SECTION 6.13 Preferential Collection of Claims
---------------------------------
Against Company......................................... 53
---------------
SECTION 6.14 Appointment of Authenticating Agent....................... 53
-----------------------------------
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Company to Furnish Trustee Names and
------------------------------------
Addresses of Holders.................................... 56
--------------------
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SECTION 7.2 Preservation of Information;
----------------------------
Communications to Holders............................... 56
-------------------------
SECTION 7.3 Reports by Trustee........................................ 57
------------------
SECTION 7.4 Reports by Company........................................ 58
------------------
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 Company May Consolidate, etc., Only on
--------------------------------------
Certain Terms........................................... 58
-------------
SECTION 8.2 Successor Corporation Substituted......................... 59
---------------------------------
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of
------------------------------------------
Holders................................................. 59
-------
SECTION 9.2 Supplemental Indentures with Consent of
---------------------------------------
Holders................................................. 61
-------
SECTION 9.3 Execution of Supplemental Indentures...................... 62
------------------------------------
SECTION 9.4 Effect of Supplemental Indentures......................... 62
---------------------------------
SECTION 9.5 Conformity with Trust Indenture Act....................... 63
-----------------------------------
SECTION 9.6 Reference in Securities to Supplemental
---------------------------------------
Indentures.............................................. 63
----------
ARTICLE X
COVENANTS
SECTION 10.1 Payment of Principal, Premium and
---------------------------------
Interest................................................ 63
--------
SECTION 10.2 Maintenance of Office or
------------------------
Agency.................................................. 63
------
SECTION 10.3 Money for Security Payments to be Held in
-----------------------------------------
Trust................................................... 64
-----
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SECTION 10.4 Corporate Existence...................................... 65
-------------------
SECTION 10.5 Maintenance of Properties................................ 66
-------------------------
SECTION 10.6 Payment of Taxes and Other Claims........................ 66
---------------------------------
SECTION 10.7 Limitations on Liens..................................... 66
--------------------
SECTION 10.8 Limitations on Sale and Leaseback........................ 68
---------------------------------
SECTION 10.9 Statement by Officers as to Default...................... 69
-----------------------------------
SECTION 10.10 Waiver of Certain Covenants.............................. 69
---------------------------
SECTION 10.11 Defeasance of Certain Obligations........................ 69
---------------------------------
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Applicability of Article................................. 71
------------------------
SECTION 11.2 Election to Redeem; Notice to Trustee.................... 71
-------------------------------------
SECTION 11.3 Selection by Trustee of Securities
----------------------------------
to be Redeemed.......................................... 71
---------------
SECTION 11.4 Notice of Redemption..................................... 72
--------------------
SECTION 11.5 Deposit of Redemption Price.............................. 73
---------------------------
SECTION 11.6 Securities Payable on Redemption Date.................... 73
-------------------------------------
SECTION 11.7 Securities Redeemed in Part.............................. 73
---------------------------
ARTICLE XII
SINKING FUNDS
SECTION 12.1 Applicability of Article................................. 74
------------------------
SECTION 12.2 Satisfaction of Sinking Fund Payments
-------------------------------------
with Securities......................................... 74
---------------
SECTION 12.3 Redemption of Securities for
----------------------------
Sinking Fund............................................ 75
------------
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<PAGE>
INDENTURE, dated as of January 15, 1995, between CROWN CORK & SEAL
COMPANY, INC., a Pennsylvania corporation (the "Company"), and CHEMICAL BANK, a
New York banking corporation, as trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary have been done to make this Indenture a valid
agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally
-1-
<PAGE>
accepted accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally
accepted at the date of this Indenture; and
(d) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to the Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified
in Section 1.4.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" with respect to any sale leaseback transaction
restricted by Section 10.8 means the lesser of (i) the total net amount of rent
required to be paid during the remaining base term of the related lease or until
the earliest date on which the lessee may terminate such lease upon payment of a
penalty or a lump-sum termination payment (in which case the total net rent
shall include such penalty or termination payment), discounted at the weighted
average interest rate borne by the Outstanding Securities, compounded semi-
annually, or (ii) the sale price of the property so leased multiplied by a
fraction the numerator of which is the remaining base term of the related lease
(expressed in months) and the denominator of which is the base term of such
lease (expressed in months).
"Authenticating Agent" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate Securities.
"Beneficial Owner" means, with respect to Global Securities, the
Person who is the beneficial owner of such Securities as reflected on the books
of the Depositary for such Securities or on the books of a Person maintaining an
account with such Depositary (directly or as an indirect participant, in
accordance with the rules of such Depositary).
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board, as the case may be.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the
-2-
<PAGE>
Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by
law, regulation or executive order to close.
"Certificate of a Firm of Independent Public Accountants" means a
certificate signed by any firm of independent public accountants of recognized
national standing selected by the Company. The term "independent" when used
with respect to any specified firm of public accountants means such a firm which
(1) is in fact independent, (2) does not have any direct financial interest or
any material indirect financial interest in the Company or in any other obligor
upon the Securities of any series or in any affiliate of the Company or of such
other obligor, and (3) is not connected with the Company or such other obligor
or any affiliate of the Company or of such other obligor, as an officer,
employee, promoter, underwriter, trustee, partner, director or person performing
similar functions, but such firm may be the regular auditors employed by the
Company. Whenever it is herein provided that any Certificate of a Firm of
Independent Public Accountants shall be furnished to the Trustee for Securities
of any series, such Certificate shall state that the signer has read this
definition and that the signer is independent within the meaning hereof.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument, until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by any one of its Chairman of the Board, its
President or a Vice President, and by any one of its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Consolidated Net Tangible Assets" means the aggregate amount of
assets (less applicable reserves and other properly
-3-
<PAGE>
deductible items) after deducting therefrom (a) all current liabilities and (b)
all goodwill, tradenames, trademarks, patents, unamortized debt discount and
expense (to the extent included in said aggregate amount of assets) and other
like intangibles, all as set forth on the most recent consolidated balance sheet
of the Company and its consolidated Subsidiaries and computed in accordance with
generally accepted accounting principles.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at 450 W. 33rd Street, 15th Floor, New York, New York 10001.
"Corporation" includes corporations, associations, companies and
business trusts.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depositary" means a clearing agency registered as such under the
Exchange Act, or any successor thereto, which shall in either case be designated
by the Company pursuant to Section 3.1 until a successor Depositary shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Depositary" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one such Person,
"Depositary" as used with respect to the Securities of any series shall mean the
Depositary with respect to the Securities of that series.
"Discounted Security" means any Security which provides for an amount
(excluding any amounts attributable to accrued but unpaid interest thereon) less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2.
"Dollars" and the sign "$" mean the currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"Event of Default" has the meaning specified in Article V.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exempted Indebtedness" means as of any particular time the sum of (i)
all then-outstanding indebtedness for borrowed money of the Company and
Restricted Subsidiaries incurred after the date hereof and secured by any
mortgage, security interest,
-4-
<PAGE>
pledge or lien other than those permitted by paragraph (a) of Section 10.7, and
(ii) all Attributable Debt with respect to Sale and Leaseback Transactions
entered into by the Company and Restricted Subsidiaries after the date hereof
other than those permitted by paragraph (a) of Section 10.8.
"Foreign Currency" means a currency issued by the government of any
country other than the United States of America or any composite currency
(including, without limitation, the European Currency Unit).
"Funded Debt" means any indebtedness of the Company or a Restricted
Subsidiary for borrowed money having a maturity of more than 12 months from the
date such indebtedness was incurred or having a maturity of less than 12 months
but by its terms being renewable or extendable beyond 12 months from the date
such indebtedness was incurred at the option of the obligor.
"Global Security" means a Security evidencing all or part of a series
of Securities which is executed by the Company and authenticated and delivered
to the Depositary or pursuant to the Depositary's instructions, all in
accordance with this Indenture and pursuant to a Company Order, which shall be
registered in the name of the Depositary or its nominee and which shall
represent the amount of uncertificated securities as specified therein.
"Government Obligations" means securities that are (i) direct
obligations of the government which issued the currency in which the Securities
of a particular series are payable or (ii) obligations of a Person controlled or
supervised by and 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 is unconditionally guaranteed by such government, which, in
either case, are full faith and credit obligations of such government payable in
such currency and are not callable or redeemable at the option of the issuer
thereof.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 3.1.
"interest", when used with respect to a Discounted Security which by
its terms bears interest only after Maturity, means interest payable after
Maturity.
-5-
<PAGE>
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President, a Vice President or the Treasurer, and by the
Secretary or an Assistant Secretary, of the Company, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company (including in-house counsel) or the Trustee, and who
shall be acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that if such
--------
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and Securities, except to the extent provided in
Section 4.3, with respect to which the Company has effected defeasance as
provided in Article IV; and
(c) Securities that have been paid pursuant to Section 3.6 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands the Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
- ------------------
principal amount of Outstanding Securities have given
-6-
<PAGE>
any request, demand, authorization, direction, notice, consent or waiver
hereunder, (i) Securities owned by the Company, any obligor upon the Securities
or any Affiliate of the Company, such obligation shall be disregarded and deemed
not to be Outstanding, except that (A) in determining whether the Trustee shall
be protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which the Trustee knows to be so
owned shall be so disregarded and (B) Securities so owned that have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor; and (ii) the
principal amount of any Discounted Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration pursuant to Section 5.2.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities 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 premium, if any)
and interest on the Securities of that series are payable as specified as
contemplated by Section 3.1.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.6 in exchange for a mutilated
Security or in lieu of a lost, destroyed or stolen Security shall be deemed to
evidence the same debt as the mutilated, lost, destroyed or stolen Security.
"Principal Property" means any single manufacturing or processing
plant or warehouse (excluding any equipment or personalty located therein)
located in the United States, other than any such plant or warehouse or portion
thereof that the Board of Directors reasonably determines is not of material
importance to the business conducted by the Company and its Subsidiaries as an
entirety.
-7-
<PAGE>
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 3.1.
"Required Currency" has the meaning specified in Section 3.12.
"Responsible Officer", when used with respect to the Trustee, means
any officer assigned to the Corporate Trust Office, including any vice
president, assistant vice president, assistant secretary or any other officer of
the Trustee to whom any corporate trust matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means any Subsidiary that owns, operates or
leases one or more Principal Properties.
"Securities" has the meaning specified in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means each corporation of which the Company or the
Company and one or more Subsidiaries, or any one or more Subsidiaries, directly
or indirectly own securities entitling the holders thereof to elect a majority
of the directors, either at all times or so long as there is no default or
contingency that permits the holders of any other class or classes of securities
to vote for the election of one or more directors.
-8-
<PAGE>
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee, and if at any time there is more
than one such Person, "Trustee" as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this instrument was executed,
except as provided in Section 9.5.
"Yield to Maturity", when used with respect to any Discounted
Security, means the yield to maturity, if any, set forth on the face thereof.
SECTION 1.2 Compliance Certificates and Opinions.
-------------------------------------
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company or any obligor on
the Securities shall furnish to the Trustee an Officers' Certificate stating
that all conditions precedent, if any, provided for in this Indenture (including
any covenants compliance with which constitutes a condition precedent) relating
to the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any, have
been complied with, except that, in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate (other than certificates provided pursuant to
Section 10.9) or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as
-9-
<PAGE>
to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3 Form of Documents Delivered to Trustee.
---------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, any one such Person,
or that they be so certified or covered by only one document, but one such
Person may certify or give an opinion with respect to some matters and one or
more other such Persons as to other matters, and any such Person may certify or
give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4 Acts of Holders.
----------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the
-10-
<PAGE>
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 6.1) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind every future
Holder of the same Security or the Holder of every Security issued upon the
transfer thereof or in exchange therefor or in lieu thereof, in respect of
anything done, suffered or omitted to be done by the Trustee, any Paying Agent
or the Company in reliance thereon, whether or not notation of such action is
made upon such Security.
SECTION 1.5 Notices, etc., to Trustee and Company.
--------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed, in writing,
to or with the Trustee at its principal Corporate Trust Office, Attention:
Corporate Trust Administration; or
(b) the Company by the Trustee or by any Holder shall be sufficient
for every purpose (except as provided in Section 5.1(d)) hereunder if in
writing and mailed, first-class postage prepaid, to the Company addressed
to it at 9300 Ashton Road, Philadelphia, Pennsylvania 19136, Attention:
Secretary; or at any other address previously furnished in writing to the
Trustee by the Company.
-11-
<PAGE>
SECTION 1.6 Notice to Holders; Waiver.
--------------------------
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Any notice when mailed to a Holder in the aforesaid
manner shall be conclusively deemed to have been received by such Holder whether
or not actually received by such Holder. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause, it shall be impracticable to mail notice of any event
as required by any provision of this Indenture, then any method of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
SECTION 1.7 Conflict with Trust Indenture Act.
----------------------------------
If any provision hereof limits, qualifies or conflicts with the duties
imposed by any of Sections 310 through 317, inclusive, of the Trust Indenture
Act through the operation of Section 318(c) thereof, such imposed duties shall
control.
SECTION 1.8 Effect of Headings and Table of Contents.
-----------------------------------------
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
-12-
<PAGE>
SECTION 1.9 Successors and Assigns.
-----------------------
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.10 Separability Clause.
--------------------
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or enforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.11 Benefits of Indenture.
----------------------
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person (other than the parties hereto and their successors
hereunder, any Paying Agent and, the Holders) any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 1.12 Governing Law.
--------------
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York.
SECTION 1.13 Legal Holidays.
---------------
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any) need not be
made on such date, but may be made on the next succeeding Business Day at such
Place of Payment with the same force and effect as if made on the Interest
Payment Date or Redemption Date, or at the Stated Maturity, and no interest
shall accrue with respect to such payment for the period from and after such
Interest Payment Date, Redemption Date or Stated Maturity, as the case may be,
to such next succeeding Business Day.
SECTION 1.14 Certain Matters Relating to Currencies.
---------------------------------------
Whenever any action or Act is to be taken hereunder by the Holders of
Securities denominated in different currencies or currency units, then for
purposes of determining the principal amount of Securities held by such Holders,
the aggregate principal amount of the Securities denominated in a foreign
currency or currency unit shall be deemed to be that amount of Dollars that
could be obtained for such principal amount on the basis of a spot rate of
exchange specified to the Trustee for
-13-
<PAGE>
such series in an Officers' Certificate for such Foreign Currency or currency
unit into Dollars as of the date the taking of such action or Act by the Holders
of the requisite percentage in principal amount of the Securities is evidenced
to such Trustee.
The Trustee shall segregate moneys, funds and accounts held by the
Trustee in one currency or currency unit from any moneys, funds or accounts held
in any other currencies or currency units, notwithstanding any provision herein
that would otherwise permit the Trustee to commingle such amounts.
SECTION 1.15 Indenture and Securities Solely Corporate
-----------------------------------------
Obligations.
------------
No recourse for the payment of the principal of or premium, if any, or
interest on any Security, or for any claim based thereon, and no recourse under
or upon any obligation, covenant or agreement of the Company in this Indenture
or in any supplemental indenture, or in any Security, or because of the creation
of any indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the Company
or any successor corporation, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty or otherwise; it
being expressly understood that all such liability is hereby expressly waived
and released as a condition of, and as a consideration for the execution of this
Indenture and the issue of the Securities.
SECTION 1.16 Execution in Counterparts.
--------------------------
This Indenture may be signed in any number of counterparts with the
same effect as if the signatures to each counterpart were upon a single
instrument, and all such counterparts together shall be deemed an original of
this Indenture.
ARTICLE II
SECURITY FORMS
SECTION 2.1 Forms Generally.
----------------
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification
-14-
<PAGE>
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities. If the form of Securities of any series is
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 3.3 for the
authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved
or produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any securities exchange on which the Securities
may be listed, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
SECTION 2.2 Form of Face of Security.
-------------------------
[If the Security is a Discounted Security, insert -- FOR PURPOSES OF
----------------------------------------------------
SECTION 1232 OF THE UNITED STATES INTERNAL REVENUE CODE OF 1986, AS AMENDED, THE
ISSUE PRICE OF THIS SECURITY IS ____% OF ITS PRINCIPAL AMOUNT AND THE ISSUE DATE
IS _____________, 19__.]
[If the Security is a Global Security, insert -- UNLESS AND UNTIL IT
------------------------------------------------
IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS
SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE
OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]
No. ________ $__________
CROWN CORK & SEAL COMPANY, INC.
_______________
[Title of Security]
CROWN CORK & SEAL COMPANY, INC., a Pennsylvania corporation (herein
called the "Company," which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to ______________________ or registered assigns, the principal sum of ________
Dollars on ______________________, at the office or agency of the Company
referred to below, [If the Security is to bear interest prior to Maturity,
-------------------------------------------------------
insert -- , and to pay interest
- ----------
-15-
<PAGE>
thereon from _____________________ or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, semi-annually on
_______________ and _________________ in each year, commencing
____________________, [at the rate of __% per annum] [Or, if applicable, insert
--------------------------
- -- at a rate per annum as hereinafter provided], until the principal hereof is
- --
paid or duly provided for [If applicable, insert --, and (to the extent that the
-------------------------
payment of such interest shall be legally enforceable) at the rate of __% per
annum on any overdue principal and premium and on any overdue installment of
interest]. The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the ____________ or _____________ (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date,
and at maturity, to the persons to whom principal is payable. Any such interest
not so punctually paid or duly provided for shall forthwith cease to be payable
to the Holder on such Regular Record Date and may either be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities not less then 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.] [If the Security is not
-----------------------
to bear interest prior to Maturity, insert -- The principal of this Security
- ----------------------------------------------
shall not bear interest except in the case of a default in payment of principal
upon acceleration, upon redemption or at Stated Maturity and in such case the
overdue principal of this Security shall bear interest at the rate of __% per
annum (to the extent that the payment of such interest shall be legally
enforceable), which shall accrue from the date of such default in payment to the
date payment of such principal has been made or duly provided for. Interest on
any overdue principal shall be payable on demand. Any such interest on any
overdue principal that is not so paid on demand shall bear interest at the rate
of __% per annum (to the extent that the payment of such interest shall be
legally enforceable), which shall accrue from the date of such demand for
payment to the date payment of such interest has been made or duly provided for,
and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [If applicable,
---------------
insert -- any such] interest on this Security will be made at the [If
- ---------- --
applicable, insert Corporate Trust Office of the Trustee in The City of New York
- ------------------
otherwise insert office or agency of the Company maintained for that purpose in
- ----------------
_____________
-16-
<PAGE>
_____, or at such other office or agency of the Company as may be maintained for
such purpose], in [such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts] [If
applicable, insert provision for payment in Foreign Currency] [If applicable,
---------------
insert --; provided, however, that payment of interest may be made at the option
- -----------------------------
of the Company by check drawn upon any Paying Agent and mailed on or prior to an
Interest Payment Date to the address of the Person entitled thereto as such
address shall appear on the Security Register].
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture, or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
CROWN CORK & SEAL COMPANY, INC.
By:_________________________
[SEAL]
Attest:
______________________
Authorized Signature
Date:
SECTION 2.3 Form of Reverse of Security.
----------------------------
This Security is one of a duly authorized issue of Securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an indenture (herein called the "Indenture) dated as of
______________, 1994,
-17-
<PAGE>
between the Company and Chemical Bank, as trustee (herein called the "Trustee,"
which term includes any successor Trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties, obligations
and immunities thereunder of the Company, the Trustee and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of a series designated on the
face hereof [ , limited in aggregate principal amount to $__________].
[If applicable, insert -- The Securities of this series are subject to
--------------------------
redemption upon not less than 30 days' notice by mail, [if applicable, insert --
-------------------------
(1) on _________ in any year commencing with the year _________ and ending with
the year ____ through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [on
or after ____________, 19__], as a whole or in part, at the election of the
Company, at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [on or before ____________, ___%, and if
redeemed] during the 12-month period beginning _________ of the years indicated,
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert -- The Securities of this series are subject to
--------------------------
redemption upon not less than 30 days' notice by mail, (1) on __________ in any
year commencing with the year ____ and ending with the year _____ through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at
-18-
<PAGE>
any time [on or after ______], as a whole or in part, at the election of the
Company, at the Redemption Prices for redemption otherwise than through
operation of the sinking fund (expressed as percentages of the principal amount)
set forth in the table below: If redeemed during the 12-month period beginning
_____________ of the years indicated,
Redemption Price
for Redemption Redemption Price for
through Operation Redemption Otherwise
of the than through Operation
Year Sinking Fund of the Sinking Fund
- ---- ----------------- ----------------------
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise)] with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to
___________, redeem any Securities of this series as contemplated by [Clause
(2)] of the preceding paragraph as a part of, or in anticipation of, any
refunding operations by the application, directly or indirectly, of moneys
borrowed having an interest cost to the Company (calculated in accordance with
generally accepted financial practice) of less than ____% per annum.]
[The sinking fund for this series provides for the redemption on
___________ in each year beginning with the year _________ and ending with the
year ________ of [not less than] [("mandatory sinking fund) and not more than
$_________________] aggregate principal amount of Securities of this series.
[Securities of this series acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made.]
In the event of redemption of this Security in part only, a new
Security or Securities of this series for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.
-19-
<PAGE>
[If the Security is not a Discounted Security, -- If an Event of
--------------------------------------------------
Default with respect to Securities of this series shall occur and be continuing,
the principal of the Securities of this series may be declared due and payable
in the manner and with the effect provided in the Indenture.]
[If the Security is a Discounted Security, -- If an Event of Default
----------------------------------------------
with respect to Securities of this series shall occur and be continuing, an
amount of principal of the Securities of this series may be declared due and
payable in the manner and with the effect provided in the Indenture. Such
amount shall be equal to-insert formula for determining the amount. Upon
-----------------------------------------
payment (i) of the amount of principal so declared due and payable and (ii) of
interest on any overdue principal and overdue interest (in each case to the
extent that the payment of such interest shall be legally enforceable), all of
the Company's obligations in respect of the payment of the principal of and
interest, if any, on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding of each series to be affected. The Indenture
also contains provisions permitting the Holders of specified percentages in
aggregate principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all the Securities, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or waiver
by or on behalf of the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange hereof
or in lieu hereof whether or not notation of such consent or waiver is made upon
this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place, and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable on the Security
Register of the Company, upon surrender of this Security for registration of
transfer at the [If applicable, insert Corporate Trust Office of the Trustee in
---------------------
The City of New York otherwise insert office or agency of the
----------------
-20-
<PAGE>
Company maintained for such purpose in The City of New York or at such other
office or agency of the Company as may be maintained for such purpose], duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $_________ and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, the Securities are exchangeable for a like aggregate
principal amount of Securities of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made to the Holders for any registration of
transfer or exchange or redemption of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to and at the time of due presentment of this Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security is registered as
the owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any agent shall be affected by notice to
the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
-21-
<PAGE>
SECTION 2.4 Form of Trustee's Certificate of Authentication.
------------------------------------------------
This is one of the Securities referred to in the within-mentioned
Indenture.
CHEMICAL BANK, as Trustee
By ________________________
Authorized Officer
ARTICLE III
THE SECURITIES
SECTION 3.1 Amount Unlimited; Issuable in Series.
-------------------------------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of any series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) 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 Sections 3.4, 3.5, 3.6, 9.6 or 11.7);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest shall be payable
and the Regular Record Date for the interest payable on any Interest
Payment Date;
(5) the place or places where the principal of (and premium, if any)
and interest on Securities of the series shall be payable, any Securities
of that series may be
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surrendered for exchange, and notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served;
(6) the period or periods within which, the price or prices at which,
the currency or currency unit in 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;
(7) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which, the currency or currency unit
in which, and the terms and conditions upon which Securities of the series
shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(9) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
5.2;
(10) any Events of Default in addition to the Events of Default
described in Section 5.1 and any covenants of the Company with respect to
the Securities of the series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set forth
herein;
(11) if other than Dollars, the currency or currency unit in which
payment of the principal of (and premium, if any) or interest, if any, on
the Securities of the series shall be made or in which the Securities of
the series shall be denominated and the particular provisions applicable
thereto;
(12) if the principal of (and premium, if any) and interest, if any,
on the Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a currency or currency unit other than that
in which such Securities are denominated or stated to be payable, the
period or periods within which, and the terms and conditions upon which,
such election may be made, and the time and manner of determining the
exchange rate between the currency or currency unit in which such
Securities are denominated or
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stated to be payable and the currency or currency unit in which such
Securities are to be so payable;
(13) if the amount of payments of principal of (and premium, if any)
or interest, if any, on the Securities of the series may be determined with
reference to an index based on a currency or currency unit other than that
in which such Securities are denominated or stated to be payable or any
other index or formula, the manner in which such amounts shall be
determined;
(14) if the Securities of the series do not bear interest, the
applicable dates for purposes of Section 7.1;
(15) if the provisions of Section 4.1 relating to the satisfaction
and discharge of Securities of any series shall apply to the Securities of
such series; or if provisions for the satisfaction and discharge of this
Indenture other than as set forth in Section 4.1 shall apply to the
Securities of the series;
(16) the application, if any, of Section 10.11 to the Securities of
the series;
(17) whether the Securities of the series shall be issued in whole or
in part in the form of one or more Global Securities and, in such case, the
Depositary for such Global Security or Securities; and whether such Global
Security or Securities shall be temporary or permanent; and whether the
Securities of the series shall be issued in bearer form (including
Securities registrable as to principal only) with or without interest
coupons and, if applicable, the exchangeability of such Securities with
Securities issued in fully registered form;
(18) if the Securities of any series may be converted into or
exchanged for any other securities, the terms and conditions of such
conversion or exchange; and
(19) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination, and except as may otherwise be provided in or
pursuant to such Board Resolution relating thereto. The terms of such
Securities, as set forth above, may be determined by the Company from time to
time if so provided in or established pursuant to the authority granted in a
Board Resolution. All Securities of any one series need not be issued at the
same time, and unless otherwise provided, a series may be reopened for issuance
of additional Securities of such series.
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If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 3.2 Denominations.
--------------
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 3.1 which may be in Dollars or in any Foreign Currency. In the absence
of any such provisions with respect to the Securities of any series, the
Securities of such series shall be issuable in denominations of $1,000 and any
integral multiple thereof.
SECTION 3.3 Execution, Authentication, Delivery and Dating.
-----------------------------------------------
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices on the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as
provided in this Indenture and not otherwise. If the form or terms of the
Securities of the series have been established in or pursuant to one or more
Board Resolutions as permitted by Sections 2.1 and 3.1, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 6.1) shall be fully protected in relying upon, an Opinion of
Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted
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by Section 2.1, that such form has been established in conformity with the
provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 3.1, that such terms
have been established in conformity with the provisions of this Indenture;
and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized officer, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture.
SECTION 3.4 Temporary Securities.
---------------------
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities of such series which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities.
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If temporary Securities of any series are issued, the Company will
cause definitive Securities of such series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for such
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of such series of authorized denominations.
Until so exchanged the temporary Securities of such series shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
of such series.
SECTION 3.5 Registration, Registration of Transfer and Exchange.
----------------------------------------------------
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
referred to as the "Security Register") in which, subject to such reasonable
regulations as the Security Registrar may prescribe, the Company shall provide
for the registration of Securities and of transfers of Securities. The Trustee
is hereby initially appointed "Security Registrar" for the purpose of
registering Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for such series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series of any authorized denomination or denominations and of a like
aggregate principal amount.
At the option of the Holder, Securities may be exchanged for other
Securities of the same series of any authorized denomination or denominations
and of a like aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
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Every Security presented or surrendered for registration of transfer,
or for exchange or redemption shall (if so required by the Company or the
Trustee) be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Company and the Security Registrar, duly executed by
the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any registration of
transfer or exchange or redemption of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.4, 9.6 or 11.7 not
involving any transfer.
The Company shall not be required (a) to issue, register the transfer
of, or exchange, any Security during a period beginning at the opening of
business 15 days before the mailing of a notice of redemption of the Securities
selected for redemption under Section 11.3 and ending at the close of business
on the day of such mailing, or (b) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of Securities being redeemed in part.
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities.
-------------------------------------------------
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If (i) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Security, and (ii) there
is delivered to the Company and the Trustee such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
to the Company and the Trustee that such Security has been acquired by a bona
fide purchaser, the Company shall execute and upon its written request the
Trustee shall authenticate and deliver, in exchange for any such mutilated
Security or in lieu of any such destroyed, lost or stolen Security, a new
Security of like tenor and principal amount, bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion,
may, instead of issuing a new Security, pay any such Security.
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Upon the issuance of any new Securities under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Securities of such series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.7 Payment of Interest; Interest Rights Preserved.
-----------------------------------------------
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name the Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date
("Defaulted Interest") shall forthwith cease to be payable to the Holder on the
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Subsection
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provided. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 days and
not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company in writing
of such Special Record Date and, in the name and at the expense of the
Company, the Trustee shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities of such series at
his address as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Person in whose names
the Securities (or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date and shall no longer be
payable pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
written notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.8 Persons Deemed Owners.
----------------------
Prior to and at the time of due presentment of a Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name any Security is registered as
the owner of such Security for the purpose of receiving payment of principal of
(and premium, if any) and (subject to Section 3.7) interest on such Security and
for all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 3.9 Cancellation.
-------------
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All Securities surrendered for payment, redemption, registration of
transfer or exchange, or for credit against any sinking fund payment, shall be
delivered to the Trustee and shall be promptly cancelled by it. The Company may
at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Securities so delivered shall be promptly canceled by
the Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee may
be destroyed and certification of their destruction delivered to the Company,
unless by a Company Order the Company directs that canceled Securities be
returned to it.
SECTION 3.10 Computation of Interest.
------------------------
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 3.11 Global Securities.
------------------
If the Company shall establish pursuant to Section 3.1 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute and the Trustee shall,
in accordance with Section 3.3 and the Company Order with respect to such
series, authenticate and deliver one or more Global Securities in temporary or
permanent form that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of the outstanding Securities of such
series to be represented by one or more Global Securities, (ii) shall be
registered in the name of the Depositary for such Global Security or Securities
or the nominee of such Depositary, (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: "Unless and until it is exchanged
in whole or in part for Securities in definitive form, this Security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary". The Trustee shall deal with the
Depositary and its participants as representatives of the Beneficial Owners of
the Global Securities for purposes of exercising the rights of the Holders
hereunder and the rights of the Beneficial Owners of the Global Securities shall
be limited to those established by law and agreements between such Beneficial
Owners and the Depositary and its participants. Beneficial Owners shall not be
entitled to certificates for
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Global Securities as to which they are the Beneficial Owners. Requests and
directions from, and votes of, such representatives shall not be deemed to be
inconsistent if they are made with respect to different Beneficial Owners.
Except as otherwise provided herein, unless and until it is exchanged
in whole or in part for Securities in definitive form, a Global Security
representing all or a portion of the Securities of a series may not be
transferred except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor Depositary.
The Beneficial Owner's ownership of Securities shall be recorded on the records
of a participant of the Depositary that maintains such Beneficial Owner's
account for such purpose and the participant's record ownership of such
Securities shall be recorded on the records of the Depositary.
If at any time the Depositary for the Securities of a series notifies
the Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for Securities of a
series shall no longer be registered or in good standing under the Exchange Act,
or other applicable statute or regulation, and the Company shall not have
appointed a successor Depositary with respect to the Securities of such series,
or if at any time there shall have occurred and be continuing an Event of
Default under this Indenture with respect to the Securities of such series, the
Company will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive form in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such series in exchange for such Global Security or
Securities.
The Company may at any time and in its sole discretion determine that
the Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In such
event, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, will authenticate and deliver, Securities of such series in definitive
form and in an aggregate principal amount equal to the principal amount of the
Global Security or Securities representing such series in exchange for such
Global Security or Securities.
If specified by the Company pursuant to Section 3.1 with respect to
Securities of a series, the Depositary for such series of Securities may
surrender a Global Security for such
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series of Securities in exchange in whole or in part for Securities of such
series in definitive form on such terms as are acceptable to the Company and
such Depositary. Thereupon, the Company shall execute and the Trustee shall
authenticate and deliver, without charge,
(i) to each Person specified by the Depositary a new Security or
Securities of the same series, of any authorized denomination as requested
by such Person in aggregate principal amount equal to and in exchange for
such Person's beneficial interest in the Global Security; and
(ii) to the Depositary a new Global Security in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities delivered
to Holders thereof.
Upon the exchange of a Global Security for Securities in definitive
form, such Global Security shall be cancelled by the Trustee. Securities issued
in exchange for a Global Security pursuant to this Section 3.11 shall be
registered in such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Securities to the persons in whose names such Securities are so
registered.
SECTION 3.12 Payment to be in Proper Currency.
---------------------------------
Each reference in any Securities to any currency shall be of the
essence. In the case of any Securities denominated in any currency (the
"Required Currency") other than Dollars, except as otherwise provided therein,
the obligation of the Company to make any payment of the principal, premium or
interest thereon shall not be discharged or satisfied by any tender by the
Company, or recovery by the Trustee, in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in the
Trustee timely holding the full amount of the Required Currency then due and
payable. If any such tender or recovery is in a currency other than the
Required Currency, the Trustee may take such actions as it considers appropriate
to exchange such currency for the Required Currency. The costs and risks of any
such exchange, including without limitation the risks of delay and exchange rate
fluctuation, shall be borne by the Company, and the Company shall remain fully
liable for any shortfall or delinquency in the full amount of the Required
Currency then due and payable, and in no circumstances shall the Trustee be
liable therefor. The Company hereby waives any defense of payment based upon
any such tender or recovery which is not in the Required Currency, or which,
when exchanged
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for the Required Currency by the Trustee, is less than the full amount of
Required Currency then due and payable.
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ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Securities of any
-----------------------------------------------
Series.
-------
(a) The Company shall be deemed to have satisfied and discharged the
entire indebtedness on all the Securities of any particular series (i) that have
become due and payable, or (ii) that by their terms are to become due and
payable at their Stated Maturity within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the Securities of such series, or (iii) with respect to which this Section 4.1
is specified to be applicable pursuant to Section 3.1, and, so long as no Event
of Default shall be continuing, the Trustee for the Securities of such series,
upon Company Request and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of such indebtedness, when:
(1) either
(A) all Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than
(i) any Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.6, (ii) coupons appertaining to Securities
called for redemption and maturing after the relevant Redemption Date
and (iii) Securities and coupons of such series for whose payment
money has theretofore been deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in the last paragraph of
Section 10.3) have been delivered to such Trustee for cancellation; or
(B) with respect to all Outstanding Securities of such series
described in (A) above (and, in the case of (i) or (ii) below, any
coupons appertaining thereto) not theretofore so delivered to the
Trustee for the Securities of such series for cancellation:
(i) the Company has deposited or caused to be deposited
with such Trustee as trust funds in trust an amount in the
currency or currency unit in which the Securities of such series
are payable (except as otherwise specified pursuant to Section
3.1 for the Securities of such series), sufficient to pay and
discharge the entire indebtedness on
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all such Outstanding Securities of such series and any related
coupons for unpaid principal (and premium, if any) and interest,
if any, to the Stated Maturity or any Redemption Date as
contemplated by Section 4.2, as the case may be; or
(ii) the Company has deposited or caused to be deposited
with such Trustee as obligations in trust such amount of
Government Obligations denominated in the Required Currency as
will, as evidenced by a Certificate of a Firm of Independent
Public Accountants delivered to such Trustee, together with the
predetermined and certain income to accrue thereon (without
consideration of any reinvestment thereof), be sufficient to pay
and discharge when due the entire indebtedness on all such
Outstanding Securities of such series and any related coupons for
unpaid principal (and premium, if any) and interest, if any, to
the Stated Maturity or any Redemption Date as contemplated by
Section 4.2, as the case may be; or
(iii) the Company has deposited or caused to be deposited
with such Trustee in trust an amount equal to the amount referred
to in clause (i) or (ii) in any combination of currency or
currency unit or Government Obligations;
(2) the Company has paid or caused to be paid all other sums payable
with respect to the Securities of such series and any related coupons;
(3) the Company has delivered to such Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
the entire indebtedness on all Securities of such series and any related
coupons have been complied with; and
(4) if the Securities of such series and any related coupons are not
to become due and payable at their Stated Maturity within one year of the
date of such deposit or are not to be called for redemption within one year
of the date of such deposit under arrangements satisfactory to such Trustee
as of the date of such deposit, then the Company shall have given, not
later than the date of such deposit, an Opinion of Counsel based on the
fact that (x) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling or (y), since the date hereof,
there has been a change in the applicable United
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<PAGE>
States federal income tax law, in either case to the effect that, and such
opinion shall confirm that, the Holders of the Securities of such series
will not recognize income, gain or loss for federal income tax purposes as
a result of such deposit, satisfaction, defeasance and discharge and will
be subject to federal income tax on the same amount and in the same manner
and at the same times as would have been the case if such deposit,
satisfaction, defeasance and discharge had not occurred.
(b) Upon the satisfaction of the conditions set forth in this Section
4.1 with respect to all the Securities of all series, the terms and conditions
of such series, including the terms and conditions with respect thereto set
forth in this Indenture, shall no longer be binding upon, or applicable to, the
Company, and the Holders of the Securities of such series and any related
coupons shall look for payment only to the funds or obligations deposited with
the Trustee pursuant to Section 4.1(a)(1)(B); provided, however, that in no
------------------
event shall the Company be discharged from (i) any payment obligations in
respect of Securities of such series and any related coupons which are deemed
not to be Outstanding under clause (c) of the definition thereof if such
obligations continue to be valid obligations of the Company under applicable
law, (ii) any obligations under Sections 4.2(b), 6.7, 6.10 and 10.11 and (iii)
any obligations under Sections 3.5 and 3.6 (except that Securities of such
series issued upon registration of transfer or exchange or in lieu of mutilated,
destroyed, lost or stolen Securities and any related coupons shall not be
obligations of the Company) and Sections 3.12, 7.1 and 10.2; and provided,
---------
further, that in the event a petition for relief under the Bankruptcy Act of
- --------
1978 or Title 11 of the United States Code or a successor statute is filed and
not discharged with respect to the Company within 91 days after the deposit, the
entire indebtedness on all Securities of such series and any related coupons
shall not be discharged, and in such event the Trustee shall return such
deposited funds or obligations as it is then holding to the Company upon Company
Request.
SECTION 4.2 Application of Trust Money.
---------------------------
(a) All money and obligations deposited with the Trustee for any
series of Securities pursuant to Section 4.1 and Section 10.11 shall be held
irrevocably in trust and shall be made under the terms of an escrow trust
agreement in form satisfactory to such Trustee. Such money and obligations
shall be applied by such Trustee, in accordance with the provisions of the
Securities, any coupons, this Indenture and such escrow trust agreement, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as such Trustee may determine, to the Persons
entitled thereto, of the principal of (and premium, if any) and interest, if
any, on
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the Securities for the payment of which such money and obligations have been
deposited with such Trustee. If Securities of any series are to be redeemed
prior to their Stated Maturity, whether pursuant to any optional redemption
provision or in accordance with any mandatory sinking fund requirement, the
Company shall make such arrangements as are satisfactory to the Trustee for any
series of Securities for the giving of notice of redemption by such Trustee in
the name, and at the expense, of the Company.
(b) The Company shall pay and shall indemnify the Trustee for any
series of Securities against any tax, fee or other charge imposed on or assessed
against Government Obligations deposited pursuant to Section 4.1 or the interest
and principal received in respect of such Government Obligations other than any
such tax, fee or other charge which by law is payable by or on behalf of
Holders. The obligation of the Company under this Section 4.2(b) shall be
deemed to be an obligation of the Company under Section 6.7(b).
(c) Anything in this Article IV to the contrary notwithstanding, the
Trustee for any series of Securities shall deliver or pay to the Company from
time to time upon Company Request any money or Government Obligations held by it
as provided in Section 4.1 which, as expressed in a Certificate of a Firm of
Independent Public Accountants delivered to such Trustee, are in excess of the
amount thereof which would then have been required to be deposited for the
purpose for which such money or Government Obligations were deposited or
received provided such delivery can be made without liquidating any Government
Obligations.
SECTION 4.3 Satisfaction and Discharge of Indenture.
----------------------------------------
Upon compliance by the Company with the provisions of Section 4.1 as
to the satisfaction and discharge of each series of Securities issued hereunder,
and if the Company has paid or caused to be paid all other sums payable under
this Indenture, this Indenture shall cease to be of any further effect (except
as otherwise provided herein). Upon Company Request and receipt of an Opinion
of Counsel and an Officers' Certificate complying with the provisions of Section
1.2, the Trustees for all series of Securities (at the expense of the Company)
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture.
Notwithstanding the satisfaction and discharge of this Indenture, any
obligations of the Company under Sections 3.4, 3.5, 3.6, 4.2(b), 6.7, 6.10, 7.1,
10.2 and 10.11 and the obligations of the Trustee for any series of Securities
under Section 4.2 shall survive.
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SECTION 4.4 Reinstatement.
--------------
If the Trustee for any series of Securities is unable to apply any of
the amounts (for purposes of this Section 4.4, "Amounts") or Government
Obligations, as the case may be, described in Section 4.1(a)(1)(B)(i) or (ii),
respectively, in accordance with the provisions of Section 4.1 by reason of any
legal proceeding or any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Securities of such series and the
coupons, if any, appertaining thereto shall be revived and reinstated as though
no deposit had occurred pursuant to Section 4.1 until such time as the Trustee
for such series is permitted to apply all such Amounts or Government
Obligations, as the case may be, in accordance with the provisions of Section
4.1; provided, however, that if, due to the reinstatement of its rights or
------------------
obligations hereunder, the Company has made any payment of principal of (or
premium, if any) or interest, if any, on such Securities or coupons, the Company
shall be subrogated to the rights of the Holders of such Securities or coupons
to receive payment from such Amounts or Government Obligations, as the case may
be, held by the Trustee for such series.
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default.
------------------
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless such event is either inapplicable to a particular series or it is
specifically deleted or modified in the supplemental indenture creating such
series of Securities or in the form of Security for such series:
(a) default in the payment of any interest on any Security of such
series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
(b) default in the payment of the principal of (or premium, if any,
on) any Security of such series at its Maturity; or
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(c) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(d) default in the performance, or breach, of any covenant or
agreement of the Company in this Indenture (other than a default in the
performance, or a breach, of a covenant or warranty which is specifically
dealt with elsewhere in this Section or which has expressly been included
in this Indenture solely for the benefit of a series of Securities other
than such 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 aggregate principal amount of the Outstanding Securities
of such series a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(e) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60
consecutive days; or
(f) 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 the Company 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 the Company of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or the
consent by the Company to the filing of such petition or the appointment of
or taking possession by a custodian, receiver, liquidator,
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<PAGE>
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 the Company 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
(g) any other Event of Default provided with respect to Securities of
that series.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.
---------------------------------------------------
If an Event of Default with respect to the Securities of any series at
the time Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of such series may, and the Trustee upon the request of
the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of such series shall, declare the principal amount (or,
if the Securities of such series are Discounted Securities, such portion of the
principal amount as may be specified in the terms of that series) of all the
Securities of such series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by the Holders) and, upon
any such declaration such principal amount (or specified amount) shall become
due and payable. If an Event of Default specified in Section 5.1(e) or (f)
occurs and is continuing, then the principal of all the Securities shall ipso
facto become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any Holder.
At any time after such declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of such series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue interest on all Securities of such series,
(B) the principal of (and premium, if any, on) any Securities of
such series which have become due otherwise than by such declaration
of acceleration and
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<PAGE>
interest thereon at the rate or rates prescribed therefor in such
Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursement and advances of the
Trustee, its agents and counsel;
and
(ii) all Events of Default with respect to Securities of such series,
other than the non-payment of principal of Securities of such series which
have become due solely by such declaration of acceleration, have been cured
or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement
----------------------------------------------------
by Trustee.
-----------
The Company covenants that if:
(a) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a
period of 30 days, or
(b) default is made in the payment of principal of (or premium, if any,
on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, with interest upon
the overdue principal (and premium, if any) and, to the extent that payment of
such interest shall be legally enforceable, upon overdue installments of
interest, at the rate borne by the Securities; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid and may
prosecute such proceeding to judgment or final decree, and may enforce the same
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<PAGE>
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement for
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 5.4 Trustee May File Proofs of Claim.
---------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor, upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding, and
(b) to collect and receive any money or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and any other
amounts due the Trustee under Section 6.7.
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<PAGE>
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 5.5 Trustee May Enforce Claims Without Possession of
------------------------------------------------
Securities.
-----------
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
and as trustee of an express trust, and any recovery of judgment shall after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 5.6 Application of Money Collected.
-------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 6.7;
and
SECOND: To the payment of the amounts then due and unpaid upon the
Securities for principal (and premium, if any) and interest, in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due
and payable on such Securities for principal (and premium, if any) and
interest.
SECTION 5.7 Limitation on Suits.
--------------------
No Holder of any Securities of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(a) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of such series;
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(b) the Holders of not less than 25% in principal amount for the
Outstanding Securities of such series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee indemnity
satisfactory to the Trustee against the costs, expenses and liabilities to
be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of such series;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 5.8 Unconditional Right of Holders to Receive Principal,
----------------------------------------------------
Premium and Interest.
---------------------
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right on the terms stated herein, which is absolute
and unconditional, to receive payment of the principal of (and premium, if any)
and (subject to Section 3.7) interest on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
SECTION 5.9 Restoration of Rights and Remedies.
-----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee
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<PAGE>
and the Holders shall continue as though no such proceeding has been instituted.
SECTION 5.10 Rights and Remedies Cumulative.
-------------------------------
Except as provided in Section 3.6, no right or remedy herein conferred
upon or reserved to the Trustee or to the Trustee and the Holders is intended to
be exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver.
-----------------------------
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 5.12 Control by Holders.
-------------------
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(a) such direction shall not be in conflict with any rule of law or with
this Indenture; and
(b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 5.13 Waiver of Past Defaults.
------------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder and its consequences,
except a default
(a) in the payment of the principal of (or premium, if any) or interest
on any Security of such series, or
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(b) in respect of a covenant or provision hereof which under Article
IX cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture, but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 5.14 Undertaking for Costs.
----------------------
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of any undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities,
or to any suit instituted by any Holder for the enforcement of the payment of
the principal of (or premium, if any) or interest on any Security on or after
the respective Stated Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
SECTION 5.15 Waiver of Stay or Extension Laws.
---------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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ARTICLE VI
The Trustee
SECTION 6.1 Certain Duties and Responsibilities.
------------------------------------
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture or the Trust Indenture Act,
and no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they conform
to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) 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
------
(1) this Subsection (c) shall not be construed to limit the effect
of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts;
(3) 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 of a majority in principal amount of the
Outstanding Securities of any series, determined as provided in
Section 5.12, relating to the time, method and place of conducting any
proceeding for any remedy available to the
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Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to such series; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 6.2 Notice of Defaults.
-------------------
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series, as their names and addresses appear in
the Security Register, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
------------------
except in the case of a default in the payment of the principal of (or premium,
if any) or interest on any Security of such series or in the payment of any
sinking fund installment with respect to Securities, the Trustee shall be
protected in withholding such notice if and so long as a trust committee of
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders; and provided,
---------
further, that in the case of any default of the character specified in Section
- --------
5.1(d) no such notice to Holders shall be given until at least 60 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default.
SECTION 6.3 Certain Rights of Trustee.
--------------------------
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
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(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate and Opinion of
Counsel;
(d) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence or indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys.
SECTION 6.4 Not Responsible for Recitals or Issuance of
-------------------------------------------
Securities.
-----------
The recitals contained herein, and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company and neither the Trustee nor any authenticating agent assumes any
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities.
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Neither the Trustee nor any Authenticating Agent shall be accountable for the
use or application by the Company of Securities or the proceeds thereof.
SECTION 6.5 May Hold Securities.
--------------------
The Trustee, any Authenticating Agent, any Paying Agent, Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities, and, subject to
Sections 6.8 and 6.13, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 6.6 Money Held in Trust.
--------------------
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 6.7 Compensation and Reimbursement.
-------------------------------
The Company agrees:
(a) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an ex press trust);
(b) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to
its negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
SECTION 6.8 Qualification of Trustee; Conflicting Interests.
------------------------------------------------
The Trustee shall be subject to the provisions of Section 310(b) of
the Trust Indenture Act during the period of time required thereby. Nothing
herein shall prevent the Trustee from
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filing with the Commission the application referred to in the penultimate
paragraph of Section 310(b) of the Trust Indenture Act. In determining whether
the Trustee has a conflicting interest as defined in Section 310(b) of the Trust
Indenture Act with respect to the securities of any series, there shall be
excluded securities of any particular series of securities other than that
series.
SECTION 6.9 Corporate Trustee Required; Eligibility.
----------------------------------------
There shall at all times be a Trustee hereunder which shall be:
(i) a corporation organized and doing business under the laws of the
United States of America, any state thereof, or the District of Columbia,
authorized under such laws to exercise corporate trust powers, and subject
to supervision or examination by Federal or State authority, or
(ii) a corporation or other Person organized and doing business under
the laws of a foreign government that is permitted to act as Trustee
pursuant to a rule, regulation, or other order of the Commission,
authorized under such laws to exercise corporate trust powers, and subject
to supervision or examination by authority of such foreign government or a
political subdivision thereof substantially equivalent to supervision or
examination applicable to United States institutional trustees,
having a combined capital and surplus of at least $50,000,000. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. No obligor upon the
Securities or a Person directly or indirectly controlling, controlled by, or
under common control with such obligor shall serve as Trustee upon the
Securities. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 6.10 Resignation and Removal; Appointment of Successor.
--------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If an
instrument of acceptance by a
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successor Trustee shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by an Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the
Trust Indenture Act pursuant to Section 6.8 hereof after written request
therefor by the Company or by any Holder who has been a bona fide Holder of
a Security for at least six months unless the Trustee's duty to resign is
stayed in accordance with Section 310(b) of the Trust Indenture Act, or
(2) the Trustee shall cease to be eligible under Section 6.9 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any case, (i) the Company by a Board Resolution may remove the Trustee,
or (ii) subject to Section 5.14, the Holder of any Security who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of any one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee with respect to the
securities of such series and shall comply with the applicable requirements of
Section 6.11. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment
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in accordance with the applicable requirements of Section 6.11, become the
successor Trustee and supersede the successor Trustee appointed by the Company.
If no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders of such Securities and accepted
appointment in the manner required by Section 6.11, the Holder of any Security
of such series who has been a bona fide Holder for at least six months may,
subject to Section 5.14, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Securities of such series as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate
Trust Office.
SECTION 6.11 Acceptance of Appointment by Successor.
---------------------------------------
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee appointed hereunder
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee, and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
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contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trust and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers, trusts and duties
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business.
---------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and
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deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 6.13 Preferential Collection of Claims Against Company.
--------------------------------------------------
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship listed in Section 311(b) of that Act.
If the Trustee shall resign or be removed as Trustee, it shall be subject to
Section 311(a) of the Trust Indenture Act to the extent provided therein.
SECTION 6.14 Appointment of Authenticating Agent.
------------------------------------
At any time when any of the Securities remain Outstanding the Trustee
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section 3.6, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purpose of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
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Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.7.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
----------------------------------------
As Trustee
By
---------------------------------
As Authenticating Agent
By
---------------------------------
Authorized Officer
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ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Company to Furnish Trustee Names and Addresses of
-------------------------------------------------
Holders.
--------
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than May 15 and November 15 in each year, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of the preceding April 1 or October 1, as the
case may be; and
(b) at such other times as the Trustee may request in writing, within 30
days after receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such
list is furnished;
provided, however, that if and so long as the Trustee shall be the Security
- ------------------
Registrar, no such list need be furnished.
SECTION 7.2 Preservation of Information; Communications to
----------------------------------------------
Holders.
--------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.1 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar or Paying Agent (if so acting). The Trustee may destroy any list
furnished to it as provided in Section 7.1 upon receipt of a new list so
furnished.
(b) If three or more Holders (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 with respect to their
rights under this Indenture or under the Securities and is accompanied by a copy
of the form of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five Business Days after the receipt of
such application, at its election, either
(1) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 7.2(a), or
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(2) inform such applicants as to the approximate number of Holders whose
names and addresses appear in the information preserved at the time by the
Trustee in accordance with Section 7.2(a), and as to the approximate cost
of mailing to such Holders the form of proxy or other communication, if
any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder whose name and address appear in the information
preserved at the time by the Trustee in accordance with Section 7.2(a), 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
or would be in violation of applicable law. Such written statement shall
specify the basis of such opinion. If the Commission, after opportunity for a
hearing upon the objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or if, after the entry
of an order sustaining one or more of such objections, the Commission shall
find, after notice and opportunity for hearing, that all the objections so
sustained have been met and shall enter an order so declaring, the Trustee shall
mail copies of such material to all such Holders with reasonable promptness
after the entry of such order and the renewal of such tender; otherwise the
Trustee shall be relieved of any obligation or duty to such applicants
respecting their application.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the Holders in accordance with Section 7.2(b),
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under Section 7.2(b).
SECTION 7.3 Reports by Trustee.
-------------------
Within 60 days after May 15 of each year commencing with the year
following the first issuance of Securities, the Trustee shall transmit by mail
to all Holders of the Securities of each outstanding series a brief report dated
as of such date that complies with Section 313(a) of the Trust Indenture Act,
but only if such report is required in any year under such Section 313(a) of the
Trust Indenture Act. With respect to each series of
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Securities, the Trustee shall also comply with Sections 313(b) and 313(c) of the
Trust Indenture Act. At any time a report is mailed to the Holders of any
particular series of Securities, a copy of such report shall be filed with the
Commission and with each securities exchange, if any, on which the Securities of
such series are listed. With respect to each series of Securities, the Company
will notify the Trustee when such series of Securities is listed on any
securities exchange.
SECTION 7.4 Reports by Company.
-------------------
The Company shall file such annual and/or periodic reports and
certificates with the Trustee and/or with the Commission and/or with the Holders
of each series of Securities as are required by the provisions of Section 314(a)
of the Trust Indenture Act.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 Company May Consolidate, etc., Only on Certain Terms.
-----------------------------------------------------
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company, unless:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, the corporation formed by such consolidation
or into which the Company is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and assets of the
Company substantially as an entirety shall be a corporation organized and
existing under the laws of the United States of America, any State thereof
or the District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal
of (and premium, if any) and interests on all the Securities and the
performance of every covenant of this Indenture on the part of the Company
to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing;
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(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would
become subject to a mortgage, pledge, lien, security interest or other
encumbrance that would not be permitted by this Indenture, the Company or
such successor corporation or Person, as the case may be, shall take such
steps as shall be necessary effectively to secure the Securities equally
and ratably with (or prior to) all indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture, comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 8.2 Successor Corporation Substituted.
----------------------------------
Upon any consolidation by the Company with or merger by the Company
into any other corporation or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 8.1, the successor corporation formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor had been named as the Company herein; and thereafter, except in the
case of a lease, the Company shall be discharged from all obligations and
covenants under the Indenture and the Securities.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Holders.
---------------------------------------------------
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein and
in the Securities; or
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(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default with respect to any or all
series of Securities (and, if any such Event of Default applies to fewer
than all series of Securities, stating each series to which such Event of
Default applies); or
(4) to add or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
--------
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 3.1; or
(7) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities of one or more series
and to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
6.11(b); or
(8) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein, or
to make any other provisions with respect to matters or questions arising
under this Indenture; provided that, in each case, such provisions shall
--------
not adversely affect the interests of the Holders of Securities of any
series in any material respect; or
(9) to add to the conditions, limitations and restrictions on the
authorized amount, form, terms or purposes of issue, authentication and
delivery of Securities, as herein set forth, other conditions, limitations
and restrictions thereafter to be observed; or
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(10) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Section 4.1, provided
that any such action shall not adversely affect the interests of the
Holders of Securities of such series and any related coupons or any other
series of Securities in any material respect; or
(11) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act, as contemplated by Section 9.5 or otherwise.
SECTION 9.2 Supplemental Indentures with Consent of Holders.
------------------------------------------------
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of each series affected
by such supplemental indenture, by Act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any manner the rights of
the Holders under this Indenture; provided, however, that no such supplemental
------------------
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby:
(a) change the Stated Maturity of the principal of, or any installment
of interest on, any Security, or reduce the principal amount thereof or the
rate of interest thereon or any premium payable upon the redemption
thereof, or reduce the amount of the principal of a Discounted Security
that would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.2, or change any Place of Payment
where, or the coin or currency in which, any Security or any premium or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date); or
(b) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture;
or
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(c) modify any of the provisions of this Section or Sections 5.13 and
10.10, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby;
provided, however, that this clause shall not be deemed to require the
------------------
consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 10.10, or the
deletion of this proviso, in accordance with the requirements of Sections
6.11(b) and 9.1(8).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
Upon the request of the Company, each accompanied by a copy of a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Holders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.3 Execution of Supplemental Indentures.
-------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.1) shall be fully protected in relying upon, an
Opinion of Counsel and an Officers' Certificate stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 9.4 Effect of Supplemental Indentures.
----------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities
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theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
SECTION 9.5 Conformity with Trust Indenture Act.
------------------------------------
Every supplemental indenture executed pursuant to the Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.6 Reference in Securities to Supplemental Indentures.
---------------------------------------------------
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
COVENANTS
SECTION 10.1 Payment of Principal, Premium and Interest.
-------------------------------------------
The Company covenants and agrees for the benefit of the Holders of
each series of Securities that it will duly and punctually pay the principal of
(and premium, if any) and interest on the Securities in accordance with the
terms of the Securities and this Indenture.
SECTION 10.2 Maintenance of Office or Agency.
--------------------------------
The Company will maintain in each Place of Payment for any series of
Securities, an office or agency where Securities of such series may be presented
or surrendered for payment, where Securities of such series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of such series and this Indenture
may be served. The office of the Trustee at its Corporate Trust Office or at
the offices or agencies of its agent shall be such office or agency of the
Company, unless the Company shall designate and maintain some other office or
agency for one or more of such purposes. The Company will give prompt written
notice to the Trustee of any change in the location of any such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and
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demands may be made or served at the Corporate Trust Office, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes, and may from time to time rescind such
designation; provided, however, that no such designation or rescission shall in
------------------
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such office or agency.
SECTION 10.3 Money for Security Payments to be Held in Trust.
------------------------------------------------
If the Company shall at any time act as its own Paying Agent, it will,
on or not more than one Business Day before each due date of the principal of
(and premium, if any) or interest on any of the Securities, segregate and hold
in trust for the benefit of the Holders entitled thereto a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided, and
will promptly notify the Trustee of its action or failure so to act.
If the Company is not acting as Paying Agent, the Company will, on or
before each due date of the principal of (and premium, if any), or interest on,
any Securities, deposit with a Paying Agent a sum in same day funds sufficient
to pay the principal (and premium, if any) or interest so becoming due, such sum
to be held in trust for the benefit of the Persons entitled to such principal,
premium or interest, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of such action or any failure so to act.
If the Company is not acting as Paying Agent, the Company will cause
each Paying Agent other than the Trustee to execute and deliver to the Trustee
an instrument in which such Paying Agent shall agree with the Trustee, subject
to the provisions of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities) in the
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making of any payment of principal (and premium, if any) or interest;
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all aspects with the
provisions of this Indenture relating to the duties, rights and liabilities
of such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security and remaining unclaimed for three years after
such principal (and premium, if any) or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
------------------
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, or mail to each
such Holder or both notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such notification, publication or mailing, any unclaimed balance of such money
then remaining will be repaid to the Company.
SECTION 10.4 Corporate Existence.
--------------------
Subject to Article VIII, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect the corporate
existence, rights (charter and statutory) and franchises of the Company and each
Subsidiary; provided, however, that the Company shall not be required to
------------------
preserve any such right
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or franchise if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business, the Company and
its Subsidiaries as a whole and that the loss thereof is not disadvantageous in
any material respect to the Holders; and provided, further, however, that the
-------------------------------
foregoing shall not prohibit a sale, transfer or conveyance of a Subsidiary or
assets of the Company or any Subsidiary in compliance with the terms of this
Indenture.
SECTION 10.5 Maintenance of Properties.
--------------------------
The Company shall cause all properties owned by the Company or any
Subsidiary or used or held for use in the conduct of its business or the
business of any Subsidiary 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 the Company from discontinuing the maintenance of any of
such properties if such discontinuance is, in the judgment of the Company,
desirable in the conduct of its business or the business of any Subsidiary and
not disadvantageous in any material respect to the Holders.
SECTION 10.6 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 any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, 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 or any Subsidiary; 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 10.7 Limitations on Liens.
---------------------
(a) The Company will not, and will not permit any Restricted
Subsidiary to, hereafter, create, assume or suffer to exist any mortgage,
security interest, pledge or lien (herein referred to as a "Lien") of or upon
any Principal Property, or any shares of capital stock or evidences of
indebtedness for borrowed money issued by any Restricted Subsidiary and owned by
the Company or any Restricted Subsidiary, whether owned at the date of this
Indenture or thereafter acquired, without making effective provision, and the
Company in such case will make or cause to be made effective provision, whereby
the Securities shall be secured
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by such Lien equally and ratably with any and all other indebtedness or
obligations thereby secured, so long as such indebtedness or obligations shall
be so secured; provided, however, that the foregoing shall not apply to any of
------------------
the following:
(1) Liens that exist on the date of this Indenture;
(2) Liens on property, shares of capital stock or evidences of
indebtedness of any corporation existing at the time such corporation
becomes a Subsidiary;
(3) Liens in favor of the Company or any Subsidiary;
(4) Liens in favor of governmental bodies to secure progress, advance or
other payments pursuant to contract or statute or indebtedness incurred to
finance all or a part of construction of or improvements to property
subject to such Liens;
(5) Liens (i) on property, shares of capital stock or evidences of
indebtedness for borrowed money existing at the time of acquisition thereof
(including acquisition through merger or consolidation), and construction
and improvement Liens that are entered into within one year from the date
of such construction or improvement, provided that in the case of
--------
construction or improvement the Lien shall not apply to any property
theretofore owned by the Company or any Restricted Subsidiary except
substantially unimproved real property on which the property so constructed
or the improvement is located and (ii) for the acquisition of any Principal
Property, which Liens are created within 180 days after the completion of
such acquisition to secure or provide for the payment of the purchase price
of the Principal Property acquired; provided that any such Liens do not
--------
extend to any other property of the Company or any of its Subsidiaries
(whether such property is then owned or thereafter acquired);
(6) mechanics', landlords' and similar Liens arising in the ordinary
course of business in respect of obligations not due or being contested in
good faith;
(7) Liens for taxes, assessments, or governmental charges or levies that
are not delinquent or are being contested in good faith;
(8) Liens arising from any legal proceedings that are being contested in
good faith;
(9) any Liens that (i) are incidental to the ordinary conduct of its
business or the ownership of its properties and assets, including Liens
incurred in connection with workmen's compensation, unemployment insurance
or other forms of
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governmental insurance or benefits, or to secure performance of tenders,
statutory obligations, leases and contracts, (ii) were not incurred in
connection with the borrowing of money or the obtaining of advances or
credit and (iii) do not in the aggregate materially detract from the value
of the property of the Company or any Subsidiary or materially impair the
use thereof in the operation of its business;
(10) Liens securing industrial development or pollution control bonds;
and
(11) Liens for the sole purpose of extending, renewing or replacing
(or successively extending, renewing or replacing) in whole or in part any
of the foregoing.
(b) Notwithstanding the provisions of paragraph (a) of this Section
10.7, the Company or any Restricted Subsidiary may, without equally and ratably
securing the Securities, create or assume Liens which would otherwise be subject
to the foregoing restrictions if at the time of such creation or assumption, and
after giving effect thereto, Exempted Indebtedness does not exceed 10% of
Consolidated Net Tangible Assets.
SECTION 10.8 Limitations on Sale and Leaseback.
----------------------------------
(a) The Company will not, nor will it permit any Restricted Subsidiary
to, enter into any arrangement with any person providing for the leasing (as
lessee) by the Company or any Restricted Subsidiary of any Principal Property
(except for temporary leases for a term, including any renewal thereof, of not
more than three years and except for leases between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries) which property has been or is to
be sold or transferred by the Company or a Restricted Subsidiary to such person
(herein referred to as a "Sale and Leaseback Transaction") unless either (i) the
Company or such Restricted Subsidiary would be entitled to incur a Lien on such
property without equally and ratably securing the Securities pursuant to
paragraph (a) of Section 10.7 or (ii) the net proceeds of such sale are at least
equal to the fair value (as determined by the Board of Directors) of such
property and the Company shall apply an amount equal to the net proceeds of such
sale to (A) the retirement (other than any mandatory retirement or payment at
maturity) of (x) Securities (other than any retirement prohibited by the terms
of any Securities pursuant to prohibitions on advance refundings) or (y) Funded
Debt of the Company or any Restricted Subsidiary ranking prior to or on a parity
with the Securities or (B) the acquisition, construction or improvement of a
Principal Property, within 120 days of the effective date of any such
arrangement.
(b) Notwithstanding the provisions of paragraph (a) of this Section
10.8, the Company or any Restricted Subsidiary may
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enter into Sale and Leaseback Transactions, if at the time of such entering
into, and after giving effect thereto, Exempted Indebtedness does not exceed 10%
of Consolidated Net Tangible Assets.
SECTION 10.9 Statement by Officers as to Default.
------------------------------------
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of Sections 10.1 to 10.8, inclusive, and if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
SECTION 10.10 Waiver of Certain Covenants.
----------------------------
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 10.2 through 10.8 if, before or
after the time for such compliance, the Holders of not less than a majority in
aggregate principal amount of the Securities at the time Outstanding shall, by
Act of such Holders, either waive such compliance in such instance or generally
waive compliance with such covenant or condition, but no such waiver shall
extend to or affect such covenant 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 covenant or
condition shall remain in full force and effect.
SECTION 10.11 Defeasance of Certain Obligations.
----------------------------------
If specified pursuant to Section 3.1 to be applicable to the
Securities of any series, the Company may omit to comply with any term,
provision or condition set forth in Section 8.1, Section 10.7 and Section 10.8
and any such omission with respect to such Sections shall not be an Event of
Default, in each case with respect to the Securities of such series; provided,
--------
however, that the following conditions have been satisfied:
- -------
(1) with respect to all Outstanding Securities of such series and any
coupons appertaining thereto not theretofore delivered to the Trustee for
cancellation, the Company shall have deposited or caused to be deposited
with the Trustee for such series as trust funds or obligations in trust an
amount of:
(i) cash in the currency or currency unit in which the Securities
of such series are payable (except as otherwise specified pursuant to
Section 3.1 for the Securities of such series);
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(ii) Government Obligations; or
(iii) a combination of such cash and Government Obligations,
in each case in an amount which, together with, as evidenced by a
Certificate of a Firm of Independent Public Accountants delivered to such
Trustee, the predetermined and certain income to accrue on any Government
Obligations when due (without the consideration of any reinvestment
thereof) is sufficient to pay and discharge when due the entire
indebtedness on all such Outstanding Securities of such series and any
related coupons for unpaid principal (and premium, if any) and interest, if
any, to the Stated Maturity or any Redemption Date, as the case may be;
(2) such deposit will 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;
(3) no Event of Default or event which with the giving of notice or
lapse of time, or both, would become an Event of Default with respect to
the Securities of that Series shall have occurred and be continuing on the
date of such deposit and no Event of Default under Section 5.1(e) or
Section 5.1(f) or event which with the giving of notice or lapse of time,
or both, would become an Event of Default under Section 5.1(e) or Section
5.1(f) shall have occurred and be continuing on the 91st day after such
date;
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the defeasance contemplated in the Section have
been complied with; and
(5) if the Securities of such series and any related coupons are not to
become due and payable at their Stated Maturity within one year of the date
of such deposit or are not to be called for redemption within one year of
the date of such deposit under arrangements satisfactory to such Trustee as
of the date of such deposit, then the Company shall have given, not later
than the date of such deposit, an Opinion of Counsel based on the fact that
(x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (y), since the date hereof, there has
been a change in the applicable United States federal income tax law, in
either case to the effect that, and such opinion shall confirm that, the
Holders of the Securities of such series will not recognize income, gain or
loss for federal income tax purposes as a result of such deposit and
defeasance and will
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be subject to federal income tax on the same amount and in the same manner
and at the same times as would have been the case if such deposit and
defeasance had not occurred.
All obligations of the Company under this Indenture with respect to
the Securities of such series, other than with respect to Section 8.1, Section
10.7 and Section 10.8, shall remain in full force and effect. Anything in this
Section 10.11 to the contrary notwithstanding, the Trustee for any series of
Securities shall deliver or pay to the Company, from time to time upon Company
Request, any money or Government Obligations held by it as provided in this
Section 10.11 which, as expressed in a Certificate of a Firm of Independent
Public Accountants delivered to such Trustee, are in excess of the amount
thereof which would then have been required to be deposited for the purpose of
which such money or Government Obligations were deposited or received, provided
such delivery can be made without liquidating any Government Obligations.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Applicability of Article.
-------------------------
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.1 for Securities of any series)
in accordance with this Article.
SECTION 11.2 Election to Redeem; Notice to Trustee.
--------------------------------------
The election of the Company to redeem any Securities pursuant to
Section 11.1 shall be evidenced by a Board Resolution and an Officers'
Certificate. In case of any redemption at the election of the Company, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice period shall be satisfactory to the Trustee),
notify the Trustee in writing of such Redemption Date and of the principal
amount of Securities to be redeemed.
SECTION 11.3 Selection by Trustee of Securities to be Redeemed.
--------------------------------------------------
If less than all the Securities of any series are to be redeemed, the
particular Securities or portions thereof to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities not previously called for redemption, either pro rata or
by lot, and the amounts to be redeemed may be equal to $1,000 or any integral
multiple thereof.
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The Trustee shall promptly notify the Company and each Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any 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 11.4 Notice of Redemption.
---------------------
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed at his address appearing in
the Security Register.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Securities of any series are to be
redeemed, the identification of the particular Securities to be redeemed;
(d) in the case of a Security to be redeemed in part, the principal
amount of such Security to be redeemed, and that after the Redemption Date
upon surrender of such Security, a new Security or Securities in the
aggregate principal amount equal to the unredeemed portion thereof will be
issued;
(e) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(f) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security or portion thereof, and that (unless
the Company shall default in payment of the Redemption Price) interest
thereon shall cease to accrue on and after said date;
(g) the place or places where such Securities are to be surrendered
for payment of the Redemption Price;
(h) the CUSIP Number of the Securities; and
(i) that the redemption is for a sinking fund, if such is the case.
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Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
The notice if mailed in the manner herein provided shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Security designated for redemption as a whole or
in part shall not affect the validity of the proceedings for the redemption of
any other Security.
SECTION 11.5 Deposit of Redemption Price.
----------------------------
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.3) an amount of
money in same day funds sufficient to pay the Redemption Price of, and (except
if the Redemption Date shall be an Interest Payment Date) accrued interest on,
all the Securities or portions thereof which are to be redeemed on that date.
SECTION 11.6 Securities Payable on Redemption Date.
--------------------------------------
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price together with accrued interest to
the Redemption Date; provided, however, that installments of interest whose
------------------
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such on the relevant Regular Record Dates according to the terms and provisions
of Section 3.7.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by such
Security.
SECTION 11.7 Securities Redeemed in Part.
----------------------------
Any Security which is to be redeemed only in part shall be surrendered
at the office or agency of the Company maintained for such purpose pursuant to
Section 10.2 (with, if the Company, the Security Registrar or the Trustee so
requires, due endorsement
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by, or a written instrument of transfer in form satisfactory to the Company, the
Security Registrar or the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge to the Holder, a new Security or Securities of the same series,
of any authorized denomination as requested by such Holder in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered; provided, however, that the Depositary
------------------
need not surrender Global Securities for a partial redemption and may be
authorized to make a notation on such Global Security of such partial
redemption. In the case of a partial redemption of the Global Securities, the
Depositary, and in turn, the participants in the Depositary, shall have the
responsibility to select any Securities to be redeemed by random lot.
ARTICLE XII
SINKING FUNDS
SECTION 12.1 Applicability of Article.
-------------------------
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.1 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 12.2. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 12.2 Satisfaction of Sinking Fund Payments
-------------------------------------
with Securities.
----------------
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called-for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as
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provided for by the terms of such series, provided that such Securities have not
--------
been previously so credited. Such Securities shall be received and credited for
such purpose by the Trustee at the Redemption Price specified in such Securities
for redemption through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
SECTION 12.3 Redemption of Securities for Sinking Fund.
------------------------------------------
Not less than 90 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 12.2, and will also deliver to the Trustee any Securities to
be so delivered. The Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 11.3 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 11.4. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 11.6 and 11.7.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
CROWN CORK & SEAL COMPANY, INC.
By: /s/ Craig R.L. Calle
-------------------------------
Name: Craig R.L. Calle
Title: Vice President & Treasurer
Attest: /s/ Richard L. Krzyzanowski
----------------------------------
Name: Richard L. Krzyzanowski
Title: Secretary
CHEMICAL BANK,
as Trustee
By: /s/ G. McFarlane
------------------------------
Name: G. McFarlane
Title: Vice President
Attest: /s/ David G. Safer
----------------------------------
Name: D. Safer
Title: Trust Officer
-78-
<PAGE>
STATE OF Pennsylvania
------------------- )
) ss.:
COUNTY OF Philadelphia )
------------------
On the 25th day of January, 1995, before me personally came Craig
-- ------- - ------
R.L. Calle , to me known, who, being by me duly sworn, did depose and say that
- -----------
he is Vice President and Treasurer of Crown Cork & Seal Company, Inc., one of
------------------------------
the corporations described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
/s/ Theresa Rausch
--------------------------
[SEAL]
STATE OF New York
-------------------- )
) ss.:
COUNTY OF New York )
-------------------
On the 25th day of January, 1995, before me personally came Gregory
-- ------- - --------
McFarlane , to me known, who, being by me duly sworn, did depose and say that he
- ----------
is Vice President of Chemical Bank, one of the corporations described in and
--------------
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
/s/ Jennifer Borello
-------------------------------
[SEAL]
-79-
<PAGE>
REGISTERED REGISTERED
NUMBER [R- ] [AMOUNT]
CUSIP 228255 AF 2
CROWN CORK & SEAL COMPANY, INC.
8-3/8% NOTES DUE 2005
CROWN CORK & SEAL COMPANY, INC., a Pennsylvania corporation (herein
called the "Company," which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to _________________________________________________________________ or
registered assigns, the principal sum of _______________________________ DOLLARS
($ ____________) on January 15, 2005, at the office or agency of the Company
referred to below, and to pay interest thereon from January 25, 1995 or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on January 15 and July 15 in each year, commencing
July 15, 1995, at the rate of 8-3/8% per annum, until the principal hereof is
paid or duly provided for. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the January 1 or July 1 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date,
and at maturity, to the persons to whom principal is payable. Any such interest
not so punctually paid or duly provided for shall forthwith cease to be payable
to the Holder on such Regular Record Date and may either be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and any such interest
on this Security will be made at the Corporate Trust Office of the Trustee in
The City of New York, in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts; provided, however, that payment of interest may be made at the option of
-------- -------
the Company by check drawn upon any Paying Agent and
<PAGE>
mailed on or prior to an Interest Payment Date to the address of the Person
entitled thereto as such address shall appear on the Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture, or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
[CROWN CORK & SEAL COMPANY, INC. CORPORATE SEAL]
CROWN CORK & SEAL COMPANY, INC.
Attest: By:
/s/ Richard L. Krzyzanowski /s/ William J. Avery
- -------------------------------------- ---------------------------------
CORPORATE SECRETARY CHAIRMAN OF THE BOARD
Dated: January 25, 1995
This is one of the Securities referred to in the within-mentioned
indenture.
CHEMICAL BANK, as Trustee
By: /s/ Gregory McFarlane
-------------------------------------
Authorized Officer
<PAGE>
REVERSE SIDE
------------
CROWN CORK & SEAL COMPANY, INC.
8-3/8% NOTES DUE 2005
This Security is one of a duly authorized issue of Securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an indenture (herein called the "Indenture") dated as of January
15, 1995, between the Company and Chemical Bank, as trustee (herein called the
"Trustee," which term includes any successor Trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties,
obligations and immunities thereunder of the Company, the Trustee and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of a series
designated on the face hereof, limited in aggregate principal amount to
$300,000,000.
In the event of redemption of this Security in part only, a new Security
or Securities of this series for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding of each series to be affected. The Indenture
also contains provisions permitting the Holders of specified percentages in
aggregate principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all the Securities, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or waiver
by or on behalf of the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange hereof
or in lieu hereof whether or not notation of such consent or waiver is made upon
this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place, and rate, and in the coin or
currency, herein prescribed.
<PAGE>
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable on the Security Register
of the Company, upon surrender of this Security for registration of transfer at
the Corporate Trust Office of the Trustee in The City of New York, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed by, the Holder hereof or
his attorney duly authorized in writing, and thereupon one or more new
Securities, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, the Securities are exchangeable for a like aggregate principal amount of
Securities of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made to the Holders for any registration of
transfer or exchange or redemption of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to and at the time of due presentment of this Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Security is registered as
the owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any agent shall be affected by notice to
the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
------------------------------
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as
tenants in common
UNIF GIFT MIN ACT - ______________ Custodian ______________
(Cust) (Minor)
under Uniform Gifts to Minors Act
_______________________
(State)
Additional abbreviations may also be used though not in the above list.
_________________________________
<PAGE>
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------------------
- ----------------------------------
(Please print or typewrite name and address including postal zip
code of assignee)
- ----------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
___________________________attorney to transfer said Note on the books of the
Company, with full power of substitution in the premises.
Dated:_____________________
---------------------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the Note, in every particular, without alteration or
enlargement, or any change whatever.
<PAGE>
CROWN CORK & SEAL COMPANY, INC.
Officers' Certificate
---------------------
The undersigned, Craig R.L. Calle, the duly qualified and elected Vice
President and Treasurer of Crown Cork & Seal Company, Inc., a Pennsylvania
corporation (the "Company"), and Richard L. Krzyzanowski, the duly qualified and
elected Secretary of the Company, pursuant to the authority granted by the Board
of Directors of the Company on December 15, 1994, in accordance with Section 3.1
of the Indenture, dated as of January 15, 1995, between the Company, as issuer
and Chemical Bank, as trustee (the "Indenture"), hereby certify as follows:
1. The title of the Securities (as defined in the Indenture) to be
issued is the 8-3/8% Notes Due 2005 (the "Notes").
2. The aggregate principal amount of Notes which may be
authenticated and delivered under the Indenture is U.S.
$300,000,000 (except for Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu
of, the Notes pursuant to Sections 3.4, 3.5, 3.6, 9.6 or 11.7 of
the Indenture).
3. The principal of the Notes shall be payable on January 15, 2005.
4. The Notes shall bear interest from January 25, 1995, their date
of issue, at the annual rate of 8-3/8%. Interest shall be
payable semi-annually on January 15 and July 15 of each year,
commencing July 15, 1995, to holders of record on the preceding
January 1 or July 1, as the case may be.
5. The place for payment of principal of and interest on the Notes
and surrender for exchange of the Notes shall be as specified in
the Notes.
6. The Notes shall not be subject to redemption at the option of the
Company prior to maturity.
7. The Company shall not be obligated to redeem or purchase the
Notes pursuant to any sinking fund or at the option of the holder
thereof.
8. The Notes shall be subject to the Events of Default set forth in
Section 5.1 of the Indenture, to the covenants of the Company set
forth in Article X of the Indenture, and to the provisions of
Section 10.11 of the Indenture.
<PAGE>
9. The provisions of Section 4.1 relating to the satisfaction and
discharge of Securities of any series shall apply to the Notes.
IN WITNESS WHEREOF, I have affixed my signature hereto this 25th
day of January, 1995.
/s/ Craig R.L. Calle
-----------------------------
Craig R.L. Calle
Vice President and Treasurer
/s/ Richard L.Krzyzanowski
-----------------------------
Richard L. Krzyzanowski
Secretary
-2-
<PAGE>
CROWN CORK & SEAL COMPANY, INC.
Debt Securities
TERMS AGREEMENT
---------------
January 18, 1995
Crown Cork & Seal Company, Inc.
9300 Ashton Road
Philadelphia, Pennsylvania 19136
Attention: Mr. Craig R.L. Calle
Vice President and Treasurer
Ladies and Gentlemen:
We offer to purchase, on and subject to the terms and conditions of
the Underwriting Agreement filed as an exhibit to the registration statement of
Crown Cork & Seal Company, Inc. (the "Company") on Form S-3 (No. 33-56965) (as
amended by this Terms Agreement, the "Underwriting Agreement"), the following
securities (collectively, the "Securities") on the following terms:
8-3/8% Notes Due 2005
---------------------
Principal Amount: $300,000,000
Interest: 8-3/8% per annum, from January 25, 1995, payable
semiannually on July 15 and January 15 of each
year, commencing July 15, 1995, to holders of
record on the preceding July 1 or January 1, as
the case may be.
Maturity: January 15, 2005.
Optional Redemption: None.
Sinking Fund: None.
Delayed Delivery Contracts: None.
<PAGE>
Other: Sections 4.1 and 10.11 of the Indenture shall be
applicable.
Purchase Price: 99.135% of principal amount, plus accrued
interest, if any, from January 25, 1995.
Expected Reoffering Price: 99.785% of principal amount, subject to change by
the undersigned.
Closing: 10:00 a.m., New York City time on January 25,
1995, at the offices of Cleary, Gottlieb, Steen &
Hamilton, with payment to be made in New York
Clearing House (next day) funds.
The respective principal amounts of the Securities to be purchased by each
of the Underwriters are set forth opposite their names in Schedule A hereto.
It is understood that we may, with your consent, amend this offer to add
additional Underwriters and reduce the aggregate principal amount to be
purchased by the Underwriters listed in Schedule A hereto by the aggregate
principal amount to be purchased by such additional Underwriters.
The Underwriting Agreement is hereby amended by deleting the reference to
the registration number in the third line of Section 2(a) and inserting in lieu
thereof, "(No. 33-56965)".
All the provisions of the Underwriting Agreement are incorporated herein by
reference. We are in receipt of a draft of the letter required to be delivered
by Price Waterhouse pursuant to Section 5(a) of the Underwriting Agreement and
understand that we will receive an executed copy of such letter no later than
January 20, 1995.
The Securities will be made available for checking and packaging at the
office of Chemical Bank, New York, New York at least 24 hours prior to the
Closing Date.
-2-
<PAGE>
Please signify your acceptance of our offer and the above amendment by
signing the enclosed response to us in the space provided and returning it to
us.
Very truly yours,
SALOMON BROTHERS INC
CS FIRST BOSTON CORPORATION
J.P. MORGAN SECURITIES INC.
As Representatives of the several
Underwriters listed on Schedule A
hereto
By SALOMON BROTHERS INC
By /s/ Jeffrey R. Cameron
----------------------------------
Jeffrey R. Cameron
Vice President
-3-
<PAGE>
January 18, 1995
To: Salomon Brothers Inc
CS First Boston Corporation
J.P. Morgan Securities Inc.
As Representatives of the Underwriters
c/o Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
We accept the offer and amendment to the Underwriting Agreement (as
defined below) contained in your letter, dated January 18, 1995, relating to
$300 million principal amount of our 8-3/8% Notes due 2005. We also confirm
that, to the best of our knowledge after reasonable investigation, the
representations and warranties of the undersigned in the Underwriting Agreement
filed as an exhibit to the undersigned's registration statement on Form S-3 (No.
33-56965) (the "Underwriting Agreement") are true and correct, no stop order
suspending the effectiveness of the Registration Statement (as defined in the
Underwriting Agreement) or of any part thereof has been issued and no
proceedings for that purpose have been instituted or, to the knowledge of the
undersigned, are contemplated by the Securities and Exchange Commission and,
subsequent to the respective dates of the most recent financial statements in
the Prospectus (as defined in the Underwriting Agreement), there has been no
material adverse change in the financial position or results of operations of
the undersigned and its subsidiaries taken as a whole except as set forth in or
contemplated by the Prospectus.
Very truly yours,
CROWN CORK & SEAL COMPANY, INC.
By /s/ Craig R.L. Calle
------------------------------------
Craig R. L. Calle
Vice President and Treasurer
<PAGE>
Schedule A
----------
<TABLE>
<CAPTION>
Underwriter Principal Amount of Securities
- ----------- ------------------------------
<S> <C>
Salomon Brothers Inc $ 93,334,000
CS First Boston Corporation 93,333,000
J.P. Morgan Securities Inc. 93,333,000
Chemical Securities Inc. 10,000,000
C.J. Lawrence/Deutsche Bank
Securities Corporation 10,000,000
-----------
Total: $300,000,000
</TABLE>
