<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 26, 1996
REGISTRATION NO. 333-
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------
CROWN CORK & SEAL CROWN CORK & SEAL CROWN CORK & SEAL
COMPANY, INC. FINANCE PLC FINANCE
(EXACT NAME OF (EXACT NAME OF (EXACT NAME OF
REGISTRANT AS SPECIFIED REGISTRANT AS SPECIFIED REGISTRANT AS SPECIFIED
IN ITS CHARTER) IN ITS CHARTER) IN ITS CHARTER)
PENNSYLVANIA UNITED KINGDOM FRANCE
(STATE OR OTHER (STATE OR OTHER (STATE OR OTHER
JURISDICTION OF JURISDICTION OF JURISDICTION OF
INCORPORATION OR INCORPORATION OR INCORPORATION OR
ORGANIZATION) ORGANIZATION) ORGANIZATION)
23-1526444 NOT APPLICABLE NOT APPLICABLE
(I.R.S. EMPLOYER (I.R.S. EMPLOYER (I.R.S. EMPLOYER
IDENTIFICATION NO.) IDENTIFICATION NO.) IDENTIFICATION NO.)
DOWNSVIEW ROAD LE COLISEE I
9300 ASHTON ROAD WANTAGE, OXON UK RUE FRUCTIDOR
PHILADELPHIA, PA OX12 9BL 75830 PARIS CEDEX 17
19136 44-123-577-2929 FRANCE
(215) 698-5100 33-1-4918-4000
(ADDRESS, INCLUDING ZIP (ADDRESS, INCLUDING ZIP
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE CODE, AND TELEPHONE
CODE, AND TELEPHONE NUMBER, INCLUDING AREA NUMBER, INCLUDING AREA
NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S CODE, OF REGISTRANT'S
CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE PRINCIPAL EXECUTIVE
PRINCIPAL EXECUTIVE OFFICES) OFFICES)
OFFICES)
-------------
RICHARD L. KRZYZANOWSKI, ESQ.
CROWN CORK & SEAL COMPANY, INC.
9300 ASHTON ROAD
PHILADELPHIA, PA 19136
(215) 698-5208
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
THOMAS A. RALPH, ESQ. JOHN W. WHITE, ESQ.
WILLIAM G. LAWLOR, ESQ. CRAVATH, SWAINE & MOORE
DECHERT PRICE & RHOADS 825 EIGHTH AVENUE
4000 BELL ATLANTIC TOWER, NEW YORK, NY 10019
1717 ARCH STREET (212) 474-1000
PHILADELPHIA, PA 19103-2793
(215) 994-4000
-------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement as determined
by market conditions.
If the only securities being registered on this Form are offered pursuant to
dividend or interest reinvestment plans, please check the following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration number of the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the
same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
TITLE OF EACH PROPOSED MAXIMUM
CLASS OF SECURITIES AGGREGATE AMOUNT OF
TO BE REGISTERED OFFERING PRICE(1)(2) REGISTRATION FEE(3)
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C>
Debt Securities.................... $1,300,000,000 $393,939.39(4)
- ---------------------------------------------------------------------------------------------------------
Guarantees(5)...................... -- None
</TABLE>
- -------------------------------------------------------------------------------
(Footnotes continued on next page)
-------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
(Continued from previous page)
(1) Any offering of Debt Securities denominated in any foreign currency or
foreign currency unit will be treated as the equivalent in U.S. dollars
based on the exchange rate applicable to the purchase of such Debt
Securities.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) The registration fee is calculated pursuant to Rule 457(o) under the
Securities Act of 1933, as amended (the "Securities Act").
(4) Pursuant to Rule 429 under the Securities Act, $200,000,000 of Debt
Securities are being carried forward from the Registration Statement on
Form S-3, File No. 33-56965, of Crown Cork & Seal Company, Inc. for
inclusion in the Prospectus filed herewith. A registration fee of $68,966
has been paid with respect to such Debt Securities.
(5) The Debt Securities to be issued by Crown Cork & Seal Finance PLC and
Crown Cork & Seal Finance S.A. will be irrevocably and unconditionally
guaranteed on an unsecured senior basis by Crown Cork & Seal Company, Inc.
No additional registration fee is payable in respect of the registration
of the Guarantees.
This Registration Statement, which is a new Registration Statement, also
constitutes Post-Effective Amendment No. 1 to Registration Statement No. 33-
56965 of Crown Cork & Seal Company, Inc., which was declared effective on
January 9, 1995. Such Post-Effective Amendment shall hereafter become
effective concurrently with the effectiveness of this Registration Statement
and in accordance with Section 8(c) of the Securities Act. Pursuant to Rule
429 under the Securities Act, the Prospectus filed as part of this
Registration Statement also constitutes a Prospectus for Registration
Statement No. 33-56965. The $200,000,000 in Debt Securities remaining unsold
from Registration Statement No. 33-56965 will be combined with the
$1,300,000,000 aggregate amount of Debt Securities to be registered pursuant
to this Registration Statement to enable the Registrants to offer an aggregate
amount of $1,500,000,000 pursuant to the combined Prospectus; provided that
$200,000,000 of Debt Securities may be offered only by Crown Cork & Seal
Company, Inc.
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAW OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION
NOVEMBER 26, 1996
PROSPECTUS SUPPLEMENT
(To Prospectus Dated December , 1996)
$1,200,000,000
[LOGO OF CROWN CORK & SEAL COMPANY, INC.
APPEARS HERE]
CROWN CORK & SEAL COMPANY, INC.
CROWN CORK & SEAL FINANCE PLC
IRREVOCABLY AND UNCONDITIONALLY GUARANTEED BY
CROWN CORK & SEAL COMPANY, INC.
CROWN CORK & SEAL FINANCE S.A.
IRREVOCABLY AND UNCONDITIONALLY GUARANTEED BY
CROWN CORK & SEAL COMPANY, INC.
The % Notes Due (the " Notes") which mature on , , are being
offered by Crown Cork & Seal Company, Inc., a Pennsylvania corporation (the
"Company"). The % Notes Due (the " Notes"), which mature on , ,
are being offered by Crown Cork & Seal Finance PLC, a public limited company
organized under the laws of England and Wales and an indirect
(continued on following page)
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
- --------------------------------------------------------------------------------
PRICE TO UNDERWRITING PROCEEDS TO
PUBLIC(1) DISCOUNT COMPANY(1)(2)
- --------------------------------------------------------------------------------
(1) Plus accrued interest, if any, from December , 1996 to the date of
delivery.
(2) Before deducting expenses payable by the Company estimated at $1,113,939.
The Notes are offered subject to receipt and acceptance by the Underwriters, to
prior sale and to the Underwriters' right to reject any order in whole or in
part and to withdraw, cancel or modify the offer without notice. It is expected
that delivery of beneficial interests in the Notes will be made through the
facilities of DTC on or about December , 1996, against payment therefor in
immediately available funds.
SALOMON BROTHERS INC
CS FIRST BOSTON
CHASE SECURITIES INC.
J.P. MORGAN & CO.
The date of this Prospectus Supplement is December , 1996.
<PAGE>
(continued from previous page)
wholly owned subsidiary of the Company. The % Notes Due (the " Notes"
and, collectively with the Notes and the Notes, the "Notes"), which
mature on , , are being offered by Crown Cork & Seal Finance S.A., a
societe anonyme organized under the laws of the Republic of France and an
indirect wholly owned subsidiary of the Company (together with Crown Cork &
Seal Finance PLC, the "Subsidiary Issuers"). The Company, in its capacity as
an issuer, and the Subsidiary Issuers are collectively referred to herein as
the "Issuers." Each series of Notes issued by a Subsidiary Issuer will be
irrevocably and unconditionally guaranteed (the "Guarantees") as to principal,
interest and Additional Amounts (as defined herein), if any, by the Company.
Each series of Notes issued by a Subsidiary Issuer is redeemable at the option
of such Subsidiary Issuer, in whole, but not in part, at the principal amount
thereof plus accrued interest in the event of certain tax law changes
requiring the payment of Additional Amounts as described under "Description of
Debt Securities and Guarantees--Redemption for Taxation Reasons" in the
accompanying Prospectus. The Notes are not otherwise redeemable prior to
maturity. Interest on the Notes will be payable semi-annually, on and
of each year, commencing on , 1997.
Each series of Notes issued by the Company or Crown Cork & Seal Finance S.A.
will be represented by a global note registered in the name of a nominee of
The Depository Trust Company ("DTC"). Each series of Notes issued by Crown
Cork & Seal Finance PLC will be represented by a global note in bearer form
which is expected to be deposited with The Bank of New York (the "Bearer
Security Depositary") under a Depositary Agreement pursuant to which a
certificateless depositary interest in respect of such global note will be
issued to DTC. Beneficial interests in the Notes will be shown on, and
transfers thereof will be effected only through, records maintained in book-
entry form by DTC and its participants. Except in limited circumstances, the
Notes will not be available in definitive form. Settlement for the Notes will
be made in immediately available funds. The Notes will trade in DTC's Same-Day
Funds Settlement System until maturity, and secondary market trading activity
for the Notes will therefore settle in immediately available funds. All
payments of principal and interest will be made by the Issuer in immediately
available funds. See "Description of Debt Securities and Guarantees--
Depositary Arrangements" in the accompanying Prospectus. Application will be
made to list the Notes on the New York Stock Exchange.
S-2
<PAGE>
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE NOTES AT
LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
TRANSACTIONS MAY BE EFFECTED AT ANY TIME IN THE OVER-THE-COUNTER MARKET OR
OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
----------------
THIS PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING PROSPECTUS HAVE NOT RECEIVED
THE VISA OF THE FRENCH COMMISSION DES OPERATIONS DE BOURSE. ACCORDINGLY, THIS
PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING PROSPECTUS MAY NOT BE USED TO MAKE
OFFERS OR SALES IN FRANCE IN CONNECTION WITH THE OFFER DESCRIBED HEREIN.
S-3
<PAGE>
THE COMPANY
GENERAL
The Company is the world's leading manufacturer of packaging products for
consumer goods. The Company believes that it is unique in its industry in its
ability to supply food, beverage and aerosol containers to multinational
consumer marketers on a global basis. The Company currently operates 275
plants located in 53 countries and employs approximately 48,000 people.
The Company's products include metal cans for food, beverage, household and
other consumer products; plastic containers for beverage, processed food,
household, personal care and other products; metal and plastic packaging
products for health and beauty care applications including cosmetics,
fragrances and pharmaceuticals; metal specialty and promotional packaging
products; a wide variety of caps, closures, pumps and dispensing systems; and
composite containers. The Company also manufactures filling and material
handling machinery, primarily for the beverage and brewing industries, as well
as machinery used in the can making process.
Under current management, the Company has pursued a strategy of growth by
acquisition within the global packaging industry. Over the past seven years,
the Company has completed 20 acquisitions of companies with aggregate net
sales of approximately $8 billion. The largest acquisitions over this period
include CarnaudMetalbox (February 1996), Van Dorn Company (April 1993),
CONSTAR International (October 1992), Continental Can International (May
1991), Continental Can's U.S. food and beverage can businesses (July 1990) and
Continental Can Canada (December 1989). This strategy has contributed to an
increase in the Company's net sales from $1.9 billion in 1989 to $5.1 billion
in 1995. The Company's net sales in 1996, which will include the net sales of
CarnaudMetalbox for 10 months, are expected to approach $9 billion
(approximately 62% of which are expected to be generated from operations
located outside the United States, as compared to approximately 33% in 1995).
The Company's acquisition strategy has resulted in numerous benefits to the
Company, including, among others, improved market positions, product and
geographic diversification, and cost savings. The Company believes that the
ongoing rationalization of excess or inefficient capacity within the global
packaging industry, particularly in the core mature markets served by the
Company, has had a beneficial effect on asset utilization. The Company
believes that industry consolidation has generally resulted in fewer but more
competitive packaging suppliers.
In conjunction with its strategy of growth by acquisition, the Company has
invested in new manufacturing capacity, particularly for beverage can
production in emerging markets and for polyethylene terephthalate (PET)
plastic containers globally. The Company has also invested in projects that
improve production efficiencies and product quality, and lower manufacturing
and administrative costs. The Company continually reviews its operations,
especially in terms of their competitiveness and the appropriate number, size
and location of plants, emphasizing service to customers and rate of return to
investors.
The Company was founded in 1892 and is a Pennsylvania corporation. The
principal executive offices of the Company are located at 9300 Ashton Road,
Philadelphia, Pennsylvania 19136, and the telephone number at such address is
(215) 698-5100.
CarnaudMetalbox Acquisition
On February 22, 1996, the Company acquired CarnaudMetalbox, a leading
multinational manufacturer of metal and plastic packaging products with
headquarters in Paris, France, for
S-4
<PAGE>
approximately $4.0 billion. Management believes that the acquisition of
CarnaudMetalbox has positioned the Company to benefit from the following
factors, among others:
. Complementary Geographic Markets. The Company is now significantly more
diversified on a global basis. Prior to the acquisition, the Company was
the leading manufacturer of packaging products for consumer goods in
North America. The acquisition enabled the Company to significantly
increase its market presence in Europe as well as in the Middle East,
Asia-Pacific and Africa regions, where CarnaudMetalbox has a substantial
presence. As a result of the acquisition, the Company has become the
world's leading manufacturer of packaging products for consumer goods.
. Complementary Product Markets. The Company is now able to offer a
broader range of products to existing and new customers, including
packaging for health and beauty care applications, metal specialty and
promotional packaging, metal closures for glass food containers and
easy-open ends for metal food containers. The only area of significant
product overlap with CarnaudMetalbox, tinplate aerosol cans in Europe,
was eliminated by the recently completed, European Community-mandated
divestiture of a portion of the Company's aerosol can operations in that
region.
. Cost Reduction Opportunities. The Company believes that, as in past
acquisitions, it can realize significant cost reductions over time
through more effective management of costs relating to sales, marketing
and administration, and research and development activities. The Company
also expects to reduce costs through rationalization of metal and other
raw material specification requirements, improved coordination of
purchasing activities and greater price discounts on certain items
purchased in larger quantities. For information on the Company's
rationalization of manufacturing operations, see "--1996 Restructuring"
below.
. Leadership in Research, Development and Engineering. The Company
considers its research, development and engineering ("RD&E")
capabilities to be unsurpassed in the industry. The Company's principal
RD&E centers are located near Chicago, Illinois and in Wantage, UK. The
Company uses its RD&E capabilities to (a) promote development of value-
added packaging systems, (b) design cost-efficient manufacturing systems
and materials that also provide continuous quality improvement, (c)
support technical needs in customer and vendor relationships, and (d)
provide engineering services for the Company's worldwide packaging
activities. These capabilities allow the Company to identify market
opportunities by working with customers to develop new products. In
addition, the Company believes that its technical expertise, quality
reputation and customer relationships will enable it to anticipate and
capitalize on shifting customer preferences, such as the conversion to
plastic from other materials, and potential demand for new packaging
shapes.
. Improved Free Cash Flow Generation. The Company believes that the
CarnaudMetalbox acquisition has the potential to improve the Company's
ability to generate free cash flow as a result of the Company's
strengthened competitive position worldwide, opportunities to reduce
operating costs, improved working capital management and lower capital
expenditure requirements for the combined entity. Over the near term,
the Company intends to use a portion of its available free cash flow to
reduce indebtedness.
1996 Restructuring
During the second quarter of 1996, the Company charged against operations
$29.6 million for the costs associated with the closure of a South American
operation and costs associated with restructuring existing businesses in
Europe. The Company anticipates that such restructuring, when complete, will
generate approximately $6.0 million in after-tax cost savings on an annualized
basis.
The Company has made a preliminary assessment of the restructuring and exit
costs related to the acquisition of CarnaudMetalbox. The current plan of
restructuring, which commenced at the end of
S-5
<PAGE>
the first quarter of 1996, is expected to be substantially completed during
the first quarter of 1997. As of September 30, 1996, the Company had accrued
approximately $371 million for the costs associated with restructuring
CarnaudMetalbox operations and allocated such costs to the purchase price of
CarnaudMetalbox in accordance with purchase accounting requirements. These
costs comprise severance pay and benefits, writedown of assets and lease
termination and other exit costs. The cost of providing severance pay and
benefits to employees is currently estimated at approximately $202 million and
is primarily a cash expense. The cost associated with the writedown of assets
(property, equipment, inventory, etc.) is currently estimated at approximately
$139 million and has been reflected as a reduction in the fair value of the
Company's assets. Lease termination costs and other exit costs are currently
estimated at approximately $29 million and are primarily cash expenses. The
$371 million in restructuring costs recorded in connection with the
CarnaudMetalbox acquisition include the $70 million restructuring charge
previously announced by CarnaudMetalbox Asia Ltd., a subsidiary of the
Company.
The Company, on a preliminary basis, estimates that this plan of
restructuring of CarnaudMetalbox operations, when complete, will generate
annual cost savings of approximately $116 million (or $77 million after-tax)
on a full year basis. It is also estimated that capital expenditures of
approximately $50 million will be made to expand and upgrade other facilities
to minimize the adverse effects of the restructuring on existing business and
customer relationships.
The Company expects that there will be other restructurings effected within
the next year. These plans will be finalized when the Company has had time to
properly evaluate and assess business conditions and operating efficiencies to
make such decisions. As the Company continues to restructure the newly
combined Company, costs that do not qualify for purchase accounting will be
charged against operations.
The foregoing estimates of sales, restructuring charges and related cost
savings represent the Company's best estimates, but necessarily make numerous
assumptions with respect to industry performance, general business and
economic conditions, raw materials and product pricing levels, the timing of
implementation of the restructuring and related employee reductions and
facility closings and other matters, many of which are outside the Company's
control. These estimates may change, resulting in lower actual sales and
adjustments to restructuring costs and savings. The Company's estimates and
related assumptions, which are unaudited, are not necessarily indicative of
future performance, which may be significantly more or less favorable than as
set forth above, and are subject to considerations discussed in the Company's
Exchange Act filings with the SEC, including its Quarterly Report on Form 10-Q
for the quarterly period ended March 31, 1996, as amended, which is
incorporated by reference herein. Undue reliance should not be placed on the
estimates and assumptions. Such information may not necessarily be updated to
reflect circumstances existing after the date hereof or to reflect the
occurrence of unanticipated events.
THE SUBSIDIARY ISSUERS
Crown Cork & Seal Finance PLC
Crown Cork & Seal Finance PLC is a public limited company organized under
the laws of England and Wales. The purpose of Crown Cork & Seal Finance PLC is
to undertake major borrowings on behalf of the Company and certain of its
subsidiaries and to advance the proceeds of such borrowings to the Company or
certain of its subsidiaries. At November 22, 1996, Crown Cork & Seal Finance
PLC had no outstanding liabilities or assets (other than a minimal amount of
current assets). The principal executive offices of Crown Cork & Seal Finance
PLC are located at Downsview Road, Wantage, Oxon, United Kingdom OX12 9BL, and
the telephone number at such address is 44-123-577-2929.
S-6
<PAGE>
Crown Cork & Seal Finance S.A.
Crown Cork & Seal Finance S.A. is a societe anonyme organized under the laws
of the Republic of France. The purpose of Crown Cork & Seal Finance S.A. is to
undertake major borrowings on behalf of the Company and certain of its
subsidiaries and to advance the proceeds of such borrowings to the Company or
certain of its subsidiaries. At November 22, 1996, Crown Cork & Seal Finance
S.A. had no outstanding liabilities or assets (other than a minimal amount of
current assets). The principal executive offices of Crown Cork & Seal Finance
S.A. are located at Le Colisee I, rue Fructidor, 75830 Paris, France, and the
telephone number at such address is 33-1-4918-4000.
USE OF PROCEEDS
The net proceeds from the sale of the Notes will be used to repay a portion
of the borrowings outstanding under the multicurrency credit facility (the
"Acquisition Facility") which financed the cash portion of the consideration
paid in connection with the acquisition of CarnaudMetalbox in February 1996. As
of November 22, 1996, $1,887.6 million of loans were outstanding under such
facility. Interest accrues on such loans at a floating rate which, as of
November 22, 1996, was 5.9% per annum. A copy of the credit agreement relating
to this facility is filed as an exhibit to the Company's Current Report on Form
8-K filed December 15, 1995, which is incorporated herein by reference.
S-7
<PAGE>
CAPITALIZATION
The following table sets forth the consolidated capitalization and short-
term debt of the Company at September 30, 1996 and as adjusted to give effect
to the issuance of the Notes and the application of the estimated net proceeds
therefrom as described under "Use of Proceeds." For additional information as
to the capitalization of the Company, see "Summary Historical Financial
Information" and "Unaudited Pro Forma Consolidated Condensed Statements of
Operations" and the consolidated financial statements of the Company and the
related notes thereto incorporated by reference herein.
<TABLE>
<CAPTION>
SEPTEMBER 30, 1996
-------------------------
ACTUAL AS ADJUSTED
---------- -------------
(DOLLARS IN MILLIONS)
(UNAUDITED)
<S> <C> <C>
SHORT-TERM DEBT
Commercial paper and notes payable.................. $ 1,174.3 $ 1,174.3
Current portion of long-term debt................... 34.3 34.3
---------- ----------
Total short-term debt............................. $ 1,208.6 $ 1,208.6
========== ==========
LONG-TERM DEBT
Notes offered hereby(1)............................. $ -- $ 1,200.0
Acquisition Facility(2)............................. 1,812.9 622.9
Commercial paper(3)................................. 300.0 300.0
5.88% notes due 1998................................ 100.0 100.0
7.00% notes due 1999................................ 100.0 100.0
7.00% notes due 2000................................ 100.0 100.0
6.75% notes due 2003................................ 200.0 200.0
7.49% notes due 2004................................ 105.0 105.0
8.38% notes due 2005................................ 300.0 300.0
8.00% notes due 2023................................ 200.0 200.0
Perpetual notes(4).................................. 201.1 201.1
Preference shares(4)................................ 296.4 296.4
Other indebtedness.................................. 359.5 359.5
Less amounts due within one year.................... (34.3) (34.3)
---------- ----------
Total long-term debt.............................. $ 4,040.6 $ 4,050.6
Cash and cash equivalents........................... (168.7) (168.7)
---------- ----------
Total debt, net of cash and cash equivalents...... $ 5,080.5 $ 5,090.5
MINORITY INTERESTS.................................... 274.8 274.8
SHAREHOLDERS' EQUITY.................................. 3,670.8 3,670.8
---------- ----------
Total Capitalization.............................. $ 9,026.1 $ 9,036.1
========== ==========
</TABLE>
- --------
(1) See "Description of the Notes and Guarantees" for information as to the
various rates and maturities of the Notes.
(2) On November 30, 1996, all outstanding loans under the Acquisition Facility
automatically converted into term loans which mature on November 30, 1997.
Because such loans mature within one year, such loans, which are included
as long-term debt in the table above, have been reclassified as short-term
debt as of November 30, 1996. After giving effect to such
reclassification, total short-term debt, as adjusted, would have been
$1,821.5 million and total long-term debt, as adjusted, would have been
$3,427.7 million. The Company expects to replace the Acquisition Facility
with a new $2.5 billion revolving credit facility.
(3) At September 30, 1996, $300.0 million of commercial paper was reclassified
as long-term debt, reflecting the Company's ability to refinance these
borrowings on a long-term basis.
(4) For descriptions of Perpetual Notes and Preference Shares, see Note 11,
"Perpetual Notes and Preference Shares," contained in the audited
consolidated financial statements of CarnaudMetalbox for the years ended
December 31, 1995, 1994 and 1993 which were filed as Exhibit 99.1 to the
Company's Current Report on Form 8-K filed March 1, 1996, as amended.
S-8
<PAGE>
SUMMARY HISTORICAL FINANCIAL INFORMATION
The summary financial information presented below for the years ended
December 31, 1995, 1994, 1993, 1992, and 1991 and as of the end of each such
fiscal year is derived from the consolidated financial statements of the
Company, which have been audited by Price Waterhouse LLP, independent
accountants, and should be read in conjunction with the information and
audited consolidated financial statements contained in the Company's Annual
Report on Form 10-K for the year ended December 31, 1995, which is
incorporated by reference herein. The summary financial information for and as
of the nine-month periods ended September 30, 1996 and 1995 is unaudited and,
in the opinion of the Company's management, includes all adjustments,
consisting of only normal recurring accruals, necessary for a fair
presentation of such information. Such unaudited information should be read in
conjunction with the information and the consolidated financial statements
contained in the Company's Quarterly Reports on Form 10-Q for the quarterly
periods ended March 31, 1996, as amended, June 30, 1996, as amended, and
September 30, 1996, which are incorporated by reference herein. See also
"Unaudited Pro Forma Consolidated Condensed Statements of Operations." The
summary financial information in the table below does not reflect the
financial results of the Company after September 30, 1996.
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30,(1) YEAR ENDED DECEMBER 31,(1)
----------------- ------------------------------------------------
1996 1995 1995 1994 1993 1992 1991
--------- -------- -------- -------- -------- -------- --------
(DOLLARS IN MILLIONS)
<S> <C> <C> <C> <C> <C> <C> <C>
SUMMARY OF OPERATIONS
Net sales............... $ 6,367.0 $3,939.6 $5,053.8 $4,452.2 $4,162.6 $3,780.7 $3,807.4
--------- -------- -------- -------- -------- -------- --------
Cost of products sold.. 5,169.1 3,343.6 4,319.4 3,706.2 3,474.7 3,203.0 3,291.1
Depreciation and
amortization.......... 359.8 196.5 256.3 218.3 191.7 142.4 128.4
Selling and
administrative
expense............... 277.4 107.8 139.3 135.4 126.6 112.1 105.4
Provision for
restructuring(2)...... 29.6 102.7 102.7 114.6
Gain on sale of
assets................ (22.8) (8.1) (8.4) (6.7) (0.7) (5.6) (0.4)
Interest expense....... 279.6 111.6 148.6 98.8 89.8 77.4 76.6
Interest income........ (56.6) (8.8) (12.5) (7.2) (10.1) (13.5) (10.0)
Translation and
exchange adjustments.. (35.7) (1.3) (1.1) 10.1 10.8 10.2 7.5
--------- -------- -------- -------- -------- -------- --------
Income before income
taxes, equity in
earnings of affiliates
and cumulative effect
of accounting
changes............... 366.6 95.6 109.5 182.7 279.8 254.7 208.8
Income taxes........... 107.7 17.4 24.9 55.6 97.4 101.0 83.8
Equity in earnings of
affiliates, net of
minority interests.... (14.1) (9.4) (9.7) 3.9 (1.5) 1.7 3.1
--------- -------- -------- -------- -------- -------- --------
Net income before
cumulative effect of
accounting changes.... 244.8 68.8 74.9 131.0 180.9 155.4 128.1
Cumulative effect of
accounting
changes(3)............ (81.8)
--------- -------- -------- -------- -------- -------- --------
Net income............. 244.8 68.8 74.9 131.0 99.1 155.4 128.1
Preferred Stock
dividends(4).......... 13.9
--------- -------- -------- -------- -------- -------- --------
Net income available
for common
shareholders.......... $ 230.9 $ 68.8 $ 74.9 $ 131.0 $ 99.1 $ 155.4 $ 128.1
========= ======== ======== ======== ======== ======== ========
RATIO OF EARNINGS TO
FIXED CHARGES(5)....... 2.2x 1.8x 1.7x 2.8x 4.2x 4.3x 3.7x
OTHER DATA
EBITDA(6).............. $ 979.0 $ 497.6 $ 604.6 $ 607.2 $ 551.2 $ 461.0 $ 403.8
Capital expenditures... 428.4 295.4 433.5 439.8 271.3 150.6 42.2
EBITDA as a percentage
of net sales.......... 15.4% 12.6% 12.0% 13.6% 13.2% 12.2% 10.6%
Selling and
administrative expense
as a percentage of net
sales................. 4.4 2.7 2.8 3.0 3.0 3.0 2.8
Total debt as a
percentage of total
capitalization(7)..... 56.3 58.1 56.2 55.3 50.1 52.1 40.5
FINANCIAL POSITION
Total assets........... $12,536.0 $5,235.2 $5,051.7 $4,781.3 $4,236.3 $3,825.1 $2,963.5
Working capital........ 149.9 199.9 429.9 122.6 43.8 174.5 333.3
Total debt............. 5,249.1 2,226.4 2,098.2 1,825.3 1,366.3 1,319.3 769.4
Shareholders' equity... 3,670.8 1,458.1 1,461.2 1,365.2 1,251.8 1,143.6 1,084.4
</TABLE>
S-9
<PAGE>
- --------
(1) Certain reclassifications of prior years' data have been made to improve
comparability. The Company has completed a number of acquisitions during
the periods presented. Such acquisitions were accounted for using the
purchase method and may affect the comparability of data on a year-to-year
basis. See Note C to the Consolidated Financial Statements included in the
Company's Annual Report on Form 10-K for the year ended December 31, 1995
with respect to the effect of certain acquisitions by the Company.
(2) Reflects restructuring of certain facilities announced in 1996, 1995 and
1994. See Note H to the Consolidated Financial Statements included in the
Company's Annual Report on Form 10-K for the year ended December 31, 1995
and the Company's Quarterly Report on Form 10-Q for the quarterly period
ended September 30, 1996. Does not reflect restructuring costs qualifying
for purchase accounting, including certain restructuring costs in
connection with the acquisition of CarnaudMetalbox. See "The Company-1996
Restructuring." The after-tax impact of the restructuring charges for the
years ended December 31, 1995 and 1994, as reflected in the table above,
was $67.0 million and $73.2 million, respectively. The after-tax impact of
the restructuring charges for the nine months ended September 30, 1996 and
1995 was $21.9 million and $67.0 million, respectively.
(3) Reflects accounting changes related to adoption of SFAS No. 106,
"Employers' Accounting for Postretirement Benefits Other than Pensions,"
SFAS 109, "Accounting for Income Taxes," and SFAS 112, "Employers'
Accounting for Postemployment Benefits." See Note B to the Company's
Consolidated Financial Statements included in the Company's Annual Report
on Form 10-K for the year ended December 31, 1995.
(4) The Company issued Preferred Stock on February 26, 1996 in connection with
the acquisition of CarnaudMetalbox. See Notes N and T to the Company's
Consolidated Financial Statements included in the Company's Annual Report
on Form 10-K for the year ended December 31, 1995.
(5) For purposes of computing the ratio of earnings to fixed charges, earnings
consist of income before income taxes, equity in earnings of affiliates
and cumulative effect of accounting changes plus fixed charges (exclusive
of interest capitalized during the period and Preferred Stock dividend
requirements), amortization of interest previously capitalized and
distributed income from less-than-50%-owned companies. Fixed charges
include interest incurred, Preferred Stock dividend requirements,
amortization of debt issue costs and the portion of rental expense that is
deemed representative of an interest factor. See also "Ratio of Earnings
to Fixed Charges."
(6) "EBITDA" is defined as income before income taxes, equity in earnings of
affiliates and cumulative effect of accounting charges, plus depreciation
and amortization, provision for restructuring and interest expense, minus
interest income. EBITDA is presented solely as a supplement to the other
information provided above. EBITDA is not a substitute for operating and
cash flow data as determined in accordance with generally accepted
accounting principles.
(7) Total capitalization includes total debt (net of cash and cash
equivalents), minority interests and shareholders' equity.
S-10
<PAGE>
UNAUDITED PRO FORMA CONSOLIDATED CONDENSED STATEMENTS OF OPERATIONS
The following unaudited pro forma consolidated condensed statements of
operations give effect to the acquisition of CarnaudMetalbox under the
purchase method of accounting. The unaudited pro forma consolidated condensed
statement of operations for the year ended December 31, 1995 combines the
historical consolidated statements of operations of the Company and
CarnaudMetalbox giving effect to the acquisition as if it had occurred on
January 1, 1995. The unaudited pro forma consolidated condensed statement of
operations for the nine months ended September 30, 1996 combines the
historical consolidated statements of operations of the Company and
CarnaudMetalbox giving effect to the acquisition as if it had occurred on
January 1, 1996.
The unaudited pro forma consolidated condensed statements of operations are
for illustrative purposes only and have been presented in accordance with SEC
guidelines. They are not necessarily indicative of the results of operations
that might have occurred had the acquisition actually taken place on such
dates, or of future results of operations of the Company.
The unaudited pro forma consolidated condensed statements of operations are
based on the historical consolidated financial statements of the Company and
CarnaudMetalbox and should be read in conjunction with such historical
financial statements and the notes thereto, which are, in the case of
CarnaudMetalbox, included as part of the Company's Current Report on Form 8-K
filed on March 1, 1996, as amended (the "CarnaudMetalbox Financial
Statements"), and, in the case of the Company, filed with the Company's Annual
Report on Form 10-K for the year ended December 31, 1995 and the Company's
Quarterly Report on Form 10-Q for the quarterly periods ended March 31, 1996,
as amended, and September 30, 1996, respectively (and which, in the case of
the Company's 1996 quarterly results, include balance sheet and income
statement data reflecting historical results of the CarnaudMetalbox
acquisition since the acquisition date of February 22, 1996). See also
"Summary Historical Financial Information." Certain reclassifications have
been made to CarnaudMetalbox's historical consolidated financial statements to
conform with the presentation of the Company's historical consolidated
financial statements. Furthermore, the historical financial statements for
CarnaudMetalbox, prepared in accordance with French law and presented in
French francs, have for purposes of preparing these unaudited pro forma
consolidated condensed statements of operations been conformed to comply with
U.S. generally accepted accounting principles and, in accordance with SFAS No.
52, have been translated to U.S. dollars at actual average exchange rates
equal to FF 4.982/$1.00 for the pro forma statement of operations for the year
ended December 31, 1995 and FF 5.007/$1.00 for the pro forma statement of
operations for the period beginning January 1, 1996 and ending on the
acquisition date of February 22, 1996. See Note 1-B of the CarnaudMetalbox
Financial Statements for the reconciliation of CarnaudMetalbox's 1995, 1994
and 1993 net income and shareholders' equity to U.S. generally accepted
accounting principles. Such translations should not be construed as
representations that French franc amounts have been or could be converted into
U.S. dollars at that or any other rate. The use of exchange rates different
from those used in the unaudited pro forma consolidated condensed statements
of operations could have a material impact on the information presented
therein.
In accordance with the purchase method of accounting, the total purchase
price has been allocated to the assets and liabilities of CarnaudMetalbox
based upon their fair values. The accompanying unaudited pro forma
consolidated condensed statements of operations reflect the preliminary
allocation of purchase price to assets and liabilities. Accordingly, the final
allocations may differ from the amounts reflected herein.
The unaudited pro forma consolidated condensed statements of operations
reflect a $3.6 billion excess of purchase price over net assets acquired,
which is being amortized over 40 years at a rate of $90 million per year in
accordance with generally accepted accounting principles, which require that
S-11
<PAGE>
acquired intangibles be amortized over lives not to exceed 40 years.
Intangible assets acquired principally represent CarnaudMetalbox's customer
base and CarnaudMetalbox's European market presence, assets with indefinite
lives which have historically appreciated in value over time. In addition, the
acquisition facilitates the continued expansion of current lines of business
as well as the development of new businesses via the cross-selling of
packaging product offerings of both the Company and CarnaudMetalbox to
existing and potential customers as well as other factors. See "The Company."
The Company believes it will benefit from the acquisition for a period of at
least 40 years and, therefore, a 40-year amortization period is appropriate.
The Company has obtained appraisals and other studies of the significant
assets, liabilities and business operations of CarnaudMetalbox. The unaudited
pro forma consolidated condensed statements of operations reflect the
preliminary results of these reviews, including the Company's estimate of
known restructuring costs and expenses. For a discussion of recent and
possible future restructuring costs and expenses, including restructurings in
connection with the CarnaudMetalbox acquisition, see "The Company--1996
Restructuring." The final allocation of the purchase price will be completed
in the first quarter of 1997 when final appraisals, other studies and
additional information become available.
See the notes to the unaudited pro forma consolidated condensed statements
of operations for a description of the principal assumptions made in the
preparation of the pro forma information. The unaudited pro forma consolidated
condensed statements of operations do not reflect the financial results of the
Company or CarnaudMetalbox after September 30, 1996.
<TABLE>
<CAPTION>
UNAUDITED PRO FORMA CONSOLIDATED CONDENSED
STATEMENT OF OPERATIONS FOR THE
NINE MONTHS ENDED SEPTEMBER 30, 1996 (A)
------------------------------------------------------
HISTORICAL AMOUNTS PRO FORMA
---------------------------- -------------------------
COMPANY CARNAUDMETALBOX ADJUSTMENTS CONSOLIDATED
----------- --------------- ----------- ------------
(DOLLARS IN MILLIONS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C>
Net sales................ $ 6,367 $ 606 $ 6,973
Cost of products sold.. 5,169 486 5,655
Depreciation and
amortization.......... 360 36 $ (1)(B) 395
Selling and
administrative
expense............... 277 57 334
Provision for
restructuring......... 30 15 45
Gain on sale of
assets................ (23) (23)
Interest expense....... 280 17 19 (C) 316
Interest income........ (57) (3) (60)
Translation and
exchange adjustments.. (36) (36)
----------- ---------- ---- -----------
Income before income
taxes, equity in
earnings of affiliates
and cumulative effect of
accounting changes...... 367 (2) (18) 347
Income taxes........... 108 3 (4)(D) 107
Equity in earnings of
affiliates............ (4) (4)
Minority interests..... (10) 2 (8)
----------- ---------- ---- -----------
Net income............... 245 (3) (14) 228
Preferred Stock
dividends............... (14) (4)(E) (18)
----------- ---------- ---- -----------
Net income available for
common shareholders..... $ 231 $ (3) $(18) $ 210
=========== ========== ==== ===========
Earnings per share....... $ 1.91 $ (0.03) $ 1.63
Average number of common
shares outstanding...... 120,820,436 86,202,056 128,443,961
</TABLE>
S-12
<PAGE>
<TABLE>
<CAPTION>
UNAUDITED PRO FORMA CONSOLIDATED CONDENSED
STATEMENT OF OPERATIONS FOR THE
YEAR ENDED DECEMBER 31, 1995(F)
-----------------------------------------------------
HISTORICAL AMOUNTS PRO FORMA
--------------------------- -------------------------
COMPANY CARNAUDMETALBOX ADJUSTMENTS CONSOLIDATED
---------- --------------- ----------- ------------
(DOLLARS IN MILLIONS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C>
Net sales................ $ 5,054 $ 4,939 $ 9,993
Cost of products sold.. 4,311 3,926 8,237
Depreciation and
amortization.......... 256 292 $ (10)(B) 538
Selling and
administrative
expense............... 139 415 554
Provision for
restructuring......... 103 55 158
Interest expense....... 149 130 138(C) 417
Interest income........ (13) (25) (38)
Translation and
exchange adjustments.. (1) 2 1
Other.................. (13) (13)
---------- ---------- ----- -----------
Income before income
taxes, equity in
earnings of affiliates
and cumulative effect of
accounting changes...... 110 157 (128) 139
Income taxes........... 25 11 (26)(D) 10
Equity in earnings of
affiliates............ 4 1 5
Minority interests..... (14) 3 (11)
---------- ---------- ----- -----------
Net income............... 75 150 (102) 123
Preferred Stock
dividends............... (23)(E) (23)
---------- ---------- ----- -----------
Net income available for
common shareholders..... $ 75 $ 150 $(125) $ 100
========== ========== ===== ===========
Earnings per share....... $ 0.83 $ 1.76 $ 0.78
Average number of common
shares outstanding...... 90,233,518 85,327,985 127,534,336
</TABLE>
S-13
<PAGE>
NOTES TO UNAUDITED PRO FORMA
CONSOLIDATED CONDENSED STATEMENTS OF OPERATIONS
A. Historical amounts for the Company include the results from operations of
CarnaudMetalbox from the date of acquisition, February 22, 1996. Historical
amounts for CarnaudMetalbox include the results from operations of
CarnaudMetalbox for the preacquisition period beginning January 1, 1996 and
ending on the acquisition date. Pro forma adjustments relate only to such
preacquisition period.
B. To reflect the net decrease in depreciation and amortization expense due
to (a) amortization of the excess purchase price over net tangible assets
acquired on a straight-line basis over 40 years, net of elimination of
CarnaudMetalbox historical amortization of excess acquisition costs over the
values assigned to net assets acquired in prior acquisitions, (b) additional
amortization resulting from basis assigned to intangible assets other than
goodwill, (c) net decrease in depreciation resulting from change in asset
basis and lives identified in the appraisal process, and (d) decreased
depreciation resulting from property and equipment written off under existing
plans of restructuring.
C. To reflect the increase in interest expense resulting from the use of new
borrowings to finance a portion of the purchase price. The interest rate on
new borrowings of $1.84 billion is assumed to be 7.5% per annum. Such
borrowings have been made by the Company under the Acquisition Facility, which
bears interest at a variable rate. See Exhibit 10.1 to the Company's Current
Report on Form 8-K filed on December 15, 1995, which is hereby incorporated by
reference, for additional information with respect to the terms of the
Acquisition Facility. See footnote (2) in "Capitalization" for information on
the Company's intention to replace such facility.
D. To reflect the income tax effect of increased interest net of decreased
depreciation at the statutory tax rate of 37.0%. The Company expects that its
effective consolidated income tax rate may be higher than that reflected in
the unaudited pro forma consolidated condensed statements of operations due to
several factors, including the geographical mix in which the Company's future
pre-tax earnings are generated, the non-deductibility for tax purposes of a
significant portion of the purchase price for the CarnaudMetalbox acquisition
and the accounting rules governing utilization of pre-acquisition net
operating losses.
E. To reflect dividends on Preferred Stock of $1.88 per share per annum on
12,432,622 outstanding shares.
F. The unaudited pro forma consolidated condensed statement of operations
for the year ended December 31, 1995 has been updated from that included in
the Company's Current Report on Form 8-K/A filed on May 7, 1996, principally
to reflect increased pro forma goodwill amortization arising from changes in
the estimated fair value of net tangible assets acquired and the acquisition
in the second quarter of 1996 of the remaining 1.3% minority interest in
CarnaudMetalbox.
S-14
<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
the Company and its consolidated subsidiaries for the periods shown. The
ratios were derived from the audited consolidated financial statements of the
Company for the years ended December 31, 1991, 1992, 1993, 1994 and 1995 and
from the unaudited consolidated financial statements of the Company for the
nine months ended September 30, 1996. See also "Unaudited Pro Forma
Consolidated Condensed Statements of Operations."
<TABLE>
<CAPTION>
NINE MONTHS ENDED YEAR ENDED DECEMBER 31,
SEPTEMBER 30, --------------------------
1996 1995 1994 1993 1992 1991
----------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed
Charges......................... 2.2x* 1.7x* 2.8x* 4.2x 4.3x 3.7x
</TABLE>
- --------
* In 1994 and 1995 and the nine months ended September 30, 1996, the Company
incurred pre-tax restructuring charges of $114.6 million, $102.7 million and
$29.6 million, respectively, reflecting the costs associated with various
restructuring activities. If such charges had not been incurred, the ratio
of earnings to fixed charges for 1994, 1995 and the nine months ended
September 30, 1996 would have been 3.9x, 2.4x and 2.3x, respectively.
For purposes of this ratio, earnings consist of income before income taxes,
equity in earnings of affiliates and cumulative effect of accounting changes
plus fixed charges (exclusive of interest capitalized during the period and
Preferred Stock dividend requirements), amortization of interest previously
capitalized and distributed income from less-than-50%-owned companies. Fixed
charges include interest incurred, Preferred Stock dividend requirements,
amortization of debt issue costs and the portion of rental expense that is
deemed representative of an interest factor.
S-15
<PAGE>
DESCRIPTION OF THE NOTES AND GUARANTEES
The following description of the Notes offered hereby (referred to in the
accompanying Prospectus as the "Debt Securities") supplements, and to the
extent inconsistent therewith, supersedes, insofar as such description relates
to the Notes, the description of the general terms and provisions of the Debt
Securities set forth in the accompanying Prospectus, to which description
reference is hereby made. The Notes will be issued under an Indenture, dated
as of , 1996, among the Company, the Subsidiary Issuers and The Bank of New
York, as Trustee. Reference should be made to the accompanying Prospectus for
a detailed summary of the provisions of the Indenture.
The Notes are being offered by Crown Cork & Seal Company, Inc., a
Pennsylvania corporation. The Notes are limited to $ aggregate
principal amount and will mature on , .
The Notes are being offered by Crown Cork & Seal Finance PLC, a public
limited company organized under the laws of England and Wales. The Notes
are limited to $ aggregate principal amount and will mature on , .
The Notes are being offered by Crown Cork & Seal France S.A., a societe
anonyme organized under the laws of the Republic of France. The Notes are
limited to $ aggregate principal amount and will mature on , .
Each series of Notes issued by a Subsidiary Issuer will be irrevocably and
unconditionally guaranteed (the "Guarantees") as to principal, interest and
Additional Amounts, if any, by the Company. Each series of Notes issued by a
Subsidiary Issuer is redeemable at the option of such Subsidiary Issuer, in
whole, but not in part, at the principal amount thereof plus accrued interest
in the event of certain tax law changes requiring the payment of Additional
Amounts as described under "Description of Debt Securities and Guarantees--
Redemption for Taxation Reasons" in the accompanying Prospectus. The Notes are
not otherwise redeemable prior to maturity, and there is no provision for a
sinking fund for the Notes.
Interest on the Notes will be payable semi-annually, on and of each
year, commencing on , 1997. The Notes will each bear interest at the
respective rates per annum set forth on the cover page of this Prospectus
Supplement, payable semi-annually in arrears on and of each year,
commencing on , 1997(each, an "Interest Payment Date") to the persons in
whose names the Notes are registered at the close of business (whether or not
a business day) on the immediately preceding or , as the case may be,
or, in the case of bearer securities deposited with, or on behalf of, a Bearer
Security Depository, held on each Interest Payment Date. Interest on the Notes
will be computed on the basis of a 360-day year of twelve 30-day months. The
Notes will be issued in fully registered form only in denominations of $1,000
and integral multiples thereof.
Each series of Notes issued by the Company or Crown Cork & Seal Finance S.A.
will be represented by a global note registered in the name of a nominee of
The Depository Trust Company. Each series of Notes issued by Crown Cork & Seal
Finance PLC will be represented by a global note in bearer form which is
expected to be deposited with The Bank of New York under a Depository
Agreement pursuant to which a certificateless depository interest in respect
of such global note will be issued to DTC. Beneficial interests in the Notes
will be shown on, and transfers thereof will be effected only through, records
maintained in book-entry form by DTC and its participants. Except in limited
circumstances, the Notes will not be available in definitive form. See
"Description of Debt Securities and Guarantees--Depositary Arrangements" in
the accompanying Prospectus.
S- 16
<PAGE>
The claims of Holders under the Debt Securities or the Guarantees will be
effectively subordinated to the claims of creditors of the Company's
subsidiaries. After giving effect to the offering, as of September 30, 1996,
the total outstanding indebtedness (other than the Notes issued by the
Subsidiary Issuers) of the Company's subsidiaries was $ . The Indenture
does not restrict the amount of indebtedness that may be incurred by the
Company or it subsidiaries.
The corporate trust office of the Trustee located in the City of New York
will be designated as the sole Paying Agent for payments with respect to the
Notes. Payment of principal of and interest on the Global Securities will be
made in immediately available funds. Beneficial interests in the Global Notes
will trade in the Depository's Same-Day Funds Settlement System, and secondary
market trading activity in such interests will therefore settle in same-day
funds.
UNDERWRITING
Subject to the terms and conditions set forth in the Underwriting Agreement,
the applicable Issuers have agreed to sell to each of the Underwriters named
below, and each of the Underwriters has severally agreed to purchase, the
principal amounts of the Notes set forth opposite its name below:
<TABLE>
<CAPTION>
PRINCIPAL PRINCIPAL PRINCIPAL
AMOUNT OF AMOUNT OF AMOUNT OF
UNDERWRITERS NOTES NOTES NOTES
------------ --------- --------- ---------
<S> <C> <C> <C>
Salomon Brothers Inc .........
CS First Boston Corporation...
Chase Securities Inc. ........
J.P. Morgan Securities Inc....
Total.......................
</TABLE>
In the Underwriting Agreement, the several Underwriters have agreed, subject
to the terms and conditions set forth therein, to purchase all the Notes
offered hereby if any Notes are purchased. In the event of default by any
Underwriter, the Underwriting Agreement provides that, in certain
circumstances, the Underwriting Agreement may be terminated.
The Issuers have been advised by the Underwriters that the Underwriters
propose initially to offer the Notes to the public at the public offering
price set forth on the cover page of this Prospectus Supplement, and to
certain dealers at such price less a concession of not more than % of the
principal amount of the Notes. The Underwriters may allow and such dealers may
reallow a concession of not more than % of the principal amount of the Notes
to certain other dealers. After the initial public offering, the public
offering price and such concessions may be changed.
The Notes are a new issue of securities with no established trading market.
Application will be made to list the Notes on the New York Stock Exchange, and
the Underwriters intend to make a market in the Notes subject to applicable
laws and regulations. However, the Underwriters are not obligated to do so and
may discontinue making a market at any time without notice. Accordingly, there
can be no assurance given as to the liquidity of the trading market for the
Notes.
The Underwriting Agreement provides that the Issuers will indemnify the
several Underwriters against certain civil liabilities, including liabilities
under the Securities Act of 1933, or contribute to payments which the
Underwriters may be required to make in respect thereof.
Certain Underwriters and their affiliates have from time to time provided,
and may in the future provide, investment banking and commercial banking
services to the Company, for which they received or will receive customary
fees.
S-17
<PAGE>
The Bank of New York is a lender under one of the Company's two revolving
credit facilities and otherwise engages in general financing and banking
transactions with the Company.
EXPERTS
The financial statements incorporated in this Prospectus Supplement and the
accompanying Prospectus by reference to the Company's Annual Report on Form
10-K for the year ended December 31, 1995, have been so incorporated in
reliance on the report of Price Waterhouse LLP, independent accountants, given
on the authority of said firm as experts in auditing and accounting. The
audited financial statements of CarnaudMetalbox as of December 31, 1994 and
1993 and for each of the two years ending on December 31, 1994 and 1993
included in the Company's Current Report on Form 8-K filed on March 1, 1996,
as amended, incorporated by reference in this Prospectus Supplement and the
accompanying Prospectus have been so incorporated in reliance on the report of
Arthur Andersen LLP, independent accountants, and Befec-Price Waterhouse and
Claude Chevalier, statutory auditors, given on the authority of said firms as
experts in auditing and accounting. The audited financial statements of
CarnaudMetalbox as of December 31, 1995 and for the year ended December 31,
1995 included in such Current Report on Form 8-K have been so incorporated in
reliance on the report of Arthur Andersen LLP, independent accountants, and
Befec-Price Waterhouse and Salustro Reydel, statutory auditors, given on the
authority of said firms as experts in auditing and accounting.
S-18
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAW OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION
NOVEMBER 26, 1996
PROSPECTUS
DEBT SECURITIES
CROWN CORK & SEAL COMPANY, INC.
[LOGO OF CROWN CORK
& SEAL APPEARS HERE]
CROWN CORK & SEAL FINANCE PLC
CROWN CORK & SEAL FINANCE S.A.
IRREVOCABLY AND UNCONDITIONALLY GUARANTEED BY
CROWN CORK & SEAL COMPANY, INC.
Any of Crown Cork & Seal Company, Inc. (the "Company"), Crown Cork & Seal
Finance PLC, a public limited company organized under the laws of England and
Wales and an indirect wholly owned subsidiary of the Company, and Crown Cork &
Seal Finance S.A., a societe anonyme organized under the laws of the Republic
of France and an indirect wholly owned subsidiary of the Company (together with
Crown Cork & Seal Finance PLC, the "Subsidiary Issuers"), may offer and sell
from time to time its debt securities, consisting of debentures, notes and/or
other unsecured evidences of indebtedness (the "Debt Securities"), on terms to
be determined at the time of sale, through dealers, underwriters or agents to
be designated or directly to other purchasers, at an aggregate initial offering
price not exceeding $1,500,000,000 or its equivalent in another currency or
composite currency. The Company, in its capacity as an issuer, and the
Subsidiary Issuers are collectively referred to herein as the "Issuers." The
Debt Securities may be offered as separate series with the same or various
maturities. The specific designation, aggregate principal amount,
denominations, currency of payment, maturity, premium, if any, rate or rates
and times of payment of interest, if any, terms for any redemption at the
option of the applicable Issuer or the holder, terms for any sinking fund
payments, the initial public offering price, the net proceeds to the applicable
Issuer and any other specific terms in connection with the offering and sale of
the Debt Securities in respect of which this Prospectus is being delivered are
set forth in the accompanying Prospectus Supplement (the "Prospectus
Supplement").
The Debt Securities offered by the Subsidiary Issuers will be unconditionally
guaranteed (the "Guarantees") by the Company (in such capacity, the
"Guarantor"), and the Guarantees will rank on a parity with all unsecured and
unsubordinated indebtedness of the Company.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
The dealer's or other purchaser's purchase price or underwriter's or agent's
commission with respect to any Debt Securities is set forth in, or may be
calculated from, the Prospectus Supplement, and the net proceeds to the
applicable Issuer from such sale will be the purchase price of such Debt
Securities in the case of a dealer or other purchaser or the public offering
price less such commission in the case of an underwriter or agent, and less, in
each case, the other attributable issuance expenses. The aggregate proceeds to
the applicable Issuer from all the Debt Securities sold by such Issuer will be
the purchase price of Debt Securities sold less the aggregate of underwriters'
and agents' commissions and other expenses of issuance and distribution. See
"Plan of Distribution" for indemnification arrangements for the dealers, other
purchasers, underwriters and agents. This Prospectus may not be used to
consummate sales of Debt Securities unless accompanied by a Prospectus
Supplement.
The date of this Prospectus is December , 1996.
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NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY OR ANY SUBSIDIARY ISSUER OR ANY UNDERWRITER OR DEALER. THIS PROSPECTUS
DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY
OF THE SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT
IS UNLAWFUL TO MAKE SUCH AN OFFER IN SUCH JURISDICTION. NEITHER THE DELIVERY
OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES,
CREATE ANY IMPLICATION THAT THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO THE DATE HEREOF OR THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS
OF THE COMPANY OR ANY SUBSIDIARY ISSUER SINCE SUCH DATE.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Neither of the
Subsidiary Issuers is (and neither of the Subsidiary Issuers will become as a
result of the effectiveness of the Registration Statement of which this
Prospectus is a part) subject to the informational requirements of the
Exchange Act. Reports, proxy statements and other information concerning the
Company filed with the Commission may be inspected and copied at the public
reference facilities maintained by the Commission at its principal office at
450 Fifth Street, N.W., Washington, D.C. 20549 and at the regional offices of
the Commission at 7 World Trade Center, 13th Floor, New York, New York 10048
and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661. Copies of such material can also be obtained from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549,
at prescribed rates. The Commission maintains a site on the world wide web
that contains reports, proxy and information statements and other information
on registrants, such as the Company, who must file such material with the
Commission electronically. The Commission's internet address on the world wide
web is http://www.sec.gov. In addition, material filed by the Company may also
be inspected at the office of the New York Stock Exchange, 20 Broad Street,
New York, New York 10005, on which exchange the Common Stock, par value $5.00
per share ("Common Stock"), of the Company and 4.5% Convertible Preferred
Stock, par value $41.8875 per share ("Preferred Stock"), of the Company are
listed.
The Company and, with respect to Debt Securities issued by the Subsidiary
Issuers, the Subsidiary Issuers have filed a registration statement on Form S-
3 (herein, together with all amendments and exhibits thereto, the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"). This Prospectus does not contain all of the information set
forth in the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission. For further
information, reference is made to the Registration Statement and the exhibits
filed as a part thereof. Statements contained herein concerning any document
filed as an exhibit are not necessarily complete and, in each instance,
reference is made to the copy of such document filed as an exhibit to the
Registration Statement. Each such statement is qualified in its entirety by
such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission (File No.
1-2227) pursuant to the Exchange Act are hereby incorporated by reference in
this Prospectus: (a) the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995; (b) the Company's Quarterly Reports on Form 10-Q
for the quarters ended March 31, 1996 (as amended by the Company's Reports on
Form 10-Q/A filed on May 16, 1996 and September 26, 1996), June 30, 1996
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(as amended by the Company's Report on Form 10-Q/A filed on September 26,
1996), and September 30, 1996; and (c) the Company's Current Reports on Form
8-K filed on January 2, 1996, March 1, 1996 (as amended by the Company's
Reports on Form 8-K/A filed on March 18, 1996, May 3, 1996 and May 7, 1996),
September 26, 1996, and October 15, 1996.
All other documents filed by the Company pursuant to Section 13(a), 13(c),
14 and 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Debt Securities shall be
deemed to be incorporated by reference and to be a part of this Prospectus
from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part of this
Prospectus. Certain statements contained herein or in the accompanying
Prospectus Supplement, including, without limitation, the statements in "The
Company" which are not historical facts, or incorporated by reference herein
constitute forward-looking statements as such term is defined in Section 27A
of the Securities Act and Section 21E of the Exchange Act. Certain factors as
discussed herein or in the Company's Exchange Act filings with the Commission,
including the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996, as amended, could cause actual results to differ materially
from those in the forward-looking statements. Unless otherwise specifically
provided herein or in any accompanying Prospectus Supplement, references to
"$" or "dollars" in this Prospectus or any such Prospectus Supplement shall
mean United States dollars.
THE COMPANY HEREBY UNDERTAKES TO PROVIDE WITHOUT CHARGE TO EACH PERSON TO
WHOM A COPY OF THIS PROSPECTUS IS DELIVERED, UPON ORAL OR WRITTEN REQUEST OF
ANY SUCH PERSON, A COPY OF ANY OR ALL OF THE DOCUMENTS INCORPORATED HEREIN BY
REFERENCE, OTHER THAN THE EXHIBITS TO SUCH DOCUMENTS (UNLESS SUCH EXHIBITS ARE
SPECIFICALLY INCORPORATED BY REFERENCE IN SUCH DOCUMENTS). REQUESTS SHOULD BE
DIRECTED TO CROWN CORK & SEAL COMPANY, INC., 9300 ASHTON ROAD, PHILADELPHIA,
PENNSYLVANIA 19136, ATTN: CORPORATE SECRETARY, TELEPHONE (215) 698-5100.
THE COMPANY
The Company is the leading supplier of packaging products to consumer
marketing companies around the world. World headquarters are located in
Philadelphia, Pennsylvania. Additional information with respect to the Company
will be set forth in the Prospectus Supplement. Reports, proxy statements and
other information concerning the Company also may be obtained as set forth
under "Available Information."
THE SUBSIDIARY ISSUERS
The Debt Securities may be issued directly by the Company or by either of
the following indirect wholly owned subsidiaries of the Company.
Crown Cork & Seal Finance PLC
Crown Cork & Seal Finance PLC is a public limited company organized under
the laws of England and Wales. The purpose of Crown Cork & Seal Finance PLC is
to undertake major borrowings on behalf of the Company and certain of its
subsidiaries and to advance the proceeds of such borrowings to the Company or
certain of its subsidiaries.
Crown Cork & Seal Finance S.A.
Crown Cork & Seal Finance S.A. is a societe anonyme organized under the laws
of the Republic of France. The purpose of Crown Cork & Seal Finance S.A. is to
undertake major borrowings on behalf of the Company and certain of its
subsidiaries and to advance the proceeds of such borrowings to the Company or
certain of its subsidiaries.
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Enforceability of Certain Civil Liabilities
Crown Cork & Seal Finance PLC is a public limited company organized under
the Companies Act 1985 of England and Wales. Crown Cork & Seal Finance S.A. is
a societe anonyme organized under the laws of the Republic of France. Many of
the directors and executive officers of each of the Subsidiary Issuers (and
certain of the experts named in this Prospectus) are citizens or residents of
jurisdictions other than the United States. All or a substantial portion of
the assets of such directors, executive officers and experts residing outside
of the United States and all of the assets of the Subsidiary Issuers are or
may be located outside of the United States. As a result, it may not be
possible to effect service of process on such directors and executive
officers, such experts or on the Subsidiary Issuers in the United States or to
enforce, collect or realize, in United States courts, upon judgments that may
be obtained against such persons in United States courts and predicated upon
civil liability under United States securities laws. The Company and the
Subsidiary Issuers have been advised by Titmuss Sainer Dechert and Jeantet &
Associes, special United Kingdom and French counsel, respectively, to the
Company, that (a) there is doubt as to the enforceability in the United
Kingdom, in original actions or actions for the enforcement of judgments of
United States courts, of civil liabilities predicated solely on United States
federal securities laws; and (b) if an original action is brought in France,
predicated solely upon the United States federal securities laws, French
courts may not have the requisite jurisdiction to adjudicate such action or
grant the remedies sought, and that actions for enforcement in France of
judgments of United States courts, rendered against French persons referred to
in the second sentence of this paragraph would require such persons to waive
their right under Article 15 of the French Civil Code to be sued in France
only. The Company believes that none of such persons has waived such right
with respect to actions predicated solely upon United States federal
securities laws. In addition, actions in the United States under United States
federal securities laws could be affected under certain circumstances by the
French law of July 16, 1980, which may preclude or restrict the obtaining of
evidence in France or from French persons in connection with such actions. The
indenture pursuant to which the Debt Securities will be issued will provide
that each of the Subsidiary Issuers will appoint CT Corporation as its agent
for service of process in any suit, action or proceeding with respect to such
indenture brought under federal or state securities laws in any federal or
state court located in the City of New York, and will submit to such
jurisdiction.
USE OF PROCEEDS
Unless otherwise described in the applicable Prospectus Supplement, the net
proceeds from the sale of the Debt Securities will be used for general
corporate purposes of the Company and its subsidiaries, including repayment of
indebtedness, working capital, capital expenditure or other corporate
purposes.
DESCRIPTION OF DEBT SECURITIES AND GUARANTEES
The Debt Securities and Guarantees are to be issued under an Indenture,
dated as of , 1996 (the "Indenture"), among the Company, the Subsidiary
Issuers and The Bank of New York, as Trustee (the "Trustee"), a copy of which
has been filed with the Commission as an exhibit to the Registration
Statement. The following summaries of certain provisions of the Indenture do
not purport to be complete and are subject to, and are qualified in their
entirety by reference to, all provisions of the Indenture. Capitalized terms
are defined in the Indenture unless otherwise defined herein. Wherever
particular provisions or defined terms of the Indenture are referred to, such
provisions or defined terms are incorporated herein by reference. The
following sets forth certain general terms and provisions of the Debt
Securities and Guarantees. The particular terms of each series, or of Debt
Securities forming a part of a series, which are offered by a Prospectus
Supplement will be described in such Prospectus Supplement.
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GENERAL
The Indenture provides for the issuance, from time to time in one or more
series, of unsecured obligations of the applicable Issuer, which may be
debentures, notes or other evidences of indebtedness ("Debt Securities"). The
Company will irrevocably and unconditionally guarantee payments of principal,
interest, premium and Additional Amounts, if any, on any Debt Securities
issued by a Subsidiary Issuer. The Indenture does not limit the amount of Debt
Securities that may be authenticated and delivered thereunder. Each series of
Debt Securities may be established in or pursuant to a resolution of the
Issuer's (and, if the Issuer is a Subsidiary Issuer, the Company's) Board of
Directors or in one or more indentures supplemental to the Indenture. The
Indenture does not limit the amount of other indebtedness or securities that
may be issued by the Issuers.
The applicable Prospectus Supplement will name the Issuer, set forth the
price or prices at which the Debt Securities to be offered will be issued and
describe the following terms of such Debt Securities: (a) the title of such
Debt Securities; (b) any limit on the aggregate principal amount of such Debt
Securities; (c) the date or dates on which the principal of, and any premium
on, such Debt Securities is payable; (d) the rate or rates at which such Debt
Securities will bear interest, if any, and the date from which such interest,
if any, will accrue; (e) the dates on which such interest, if any, will be
payable and the Regular Record Dates for such Interest Payment Dates; (f) the
place or places where the principal of and any premium or interest on such
Debt Securities shall be payable and where any of such Debt Securities may be
surrendered for exchange and notices and demands in respect of the Debt
Securities and the Indenture may be served; (g) 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 such Debt Securities may, pursuant to
any optional or mandatory redemption provisions, be redeemed; (h) the
obligation, if any, of the applicable Issuer to redeem or purchase such Debt
Securities 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 such Debt Securities shall be redeemed or purchased, in
whole or in part, pursuant to such obligation; (i) if other than denominations
of $1,000 and any integral multiple thereof, the denomination in which such
Debt Securities shall be issuable; (j) if other than the principal amount
thereof, the portion of the principal amount of such Debt Securities payable
upon declaration of acceleration of the maturity thereof; (k) any additional
events of default or covenants applicable to such Debt Securities; (l) if
other than U.S. dollars, the currency or currency unit in which payment of the
principal of and any premium or interest on such Debt Securities shall be made
or in which such Debt Securities shall be denominated and the particular
provisions applicable thereto; (m) if the principal of and any premium or
interest on such Debt Securities are to be payable, at the election of the
applicable Issuer or a Holder thereof, in a currency or currency unit other
than that in which such Debt Securities are denominated or stated to be
payable, the currency or currency unit in which the principal of (and premium,
if any) and interest, if any, on such Debt Securities as to which such
election is made shall 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 Debt Securities are denominated or stated to be payable and the
currency or currency unit in which such Debt Securities are to be so payable;
(n) if the amount of payments of the principal of and any premium or interest
on such Debt Securities may be determined with reference to an index based on
a currency or currency unit other than that in which such Debt Securities are
denominated or stated to be payable or any other index or formula, the manner
in which such amounts shall be determined; (o) if applicable, if the Debt
Securities will be entitled to the benefits of the Guarantees afforded by the
Indenture, or otherwise the form of any Guarantees to be endorsed on the Debt
Securities; (p) where appropriate, that such Debt Securities, in whole or any
specified part, are not defeasible pursuant to the provisions of the
Indenture; (q) whether such Debt Securities shall be issued in whole or in
part in the form of one or more Global Securities (as described below under
"--Global Securities in Registered Form" and "--Global Securities in Bearer
Form") and, in such case, the Depositary or Bearer Security Depositary for
such Global Security or Securities, and whether such
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Global Security or Securities shall be temporary or permanent; and whether
such Debt Securities shall be issued in bearer form (including Securities
registrable as to principal only) with or without interest coupons and the
exchangeability of such Debt Securities for Debt Securities in fully
registered form; (r) if such Debt Securities of any series may be converted
into or exchanged for any other securities, the terms and conditions of such
conversion or exchange; and (s) any other terms of such Debt Securities, which
terms shall not be inconsistent with the provisions of the Indenture (Section
3.01).
Unless otherwise indicated below or in the applicable Prospectus Supplement,
the Debt Securities of the Company and Crown Cork & Seal Finance S.A. will be
issued only in fully registered form without coupons, the Debt Securities of
Crown Cork & Seal Finance PLC will be issued only in bearer form without
coupons in a Global Security held initially by the Bearer Security Depositary,
and, in any case, the Debt Securities will be in denominations and currencies
as established by a resolution of the applicable Issuer's Board of Directors
if other than denominations of $1,000 or any integral multiple thereof. No
service charge will be made for any registration of transfer or exchange or
redemption of the Debt Securities, but the applicable Issuer may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith (Sections 3.02 and 3.05).
Debt Securities may be issued as Discounted Securities (bearing no interest
or interest at a rate which at the time of issuance is below market rates) to
be sold at a substantial discount below their principal amount. Certain United
States federal income tax and other considerations applicable thereto are
described herein, and any special United States federal income tax
considerations will be described in the applicable Prospectus Supplement. In
addition, special United States federal income tax and other considerations
applicable to any Debt Securities which are denominated in a currency,
currencies or currency units (including composite currencies) other than US
dollars will be described in the applicable Prospectus Supplement.
The Company anticipates that Crown Cork & Seal Finance S.A. will issue only
Debt Securities meeting the definition of "obligations" under Article 284 of
the French company law of July 24, 1966, providing generally, among other
things, that such Debt Securities must have a minimum maturity of five years.
The terms of the Debt Securities and the Indenture do not afford Holders of
the Debt Securities protection in the event of a highly leveraged transaction
involving the Company or a Subsidiary Issuer that may adversely affect Holders
of the Debt Securities.
GUARANTEES
The Company will irrevocably and unconditionally guarantee to each Holder of
a Debt Security issued by a Subsidiary Issuer the due and punctual payment of
the principal of, and any premium, interest and Additional Amounts on, such
Debt Security, when and as the same shall become due and payable, whether at
maturity, upon acceleration, by call for redemption or otherwise. The Company
has (a) agreed that its obligations under the Guarantees in the event of an
Event of Default will be as if it were principal obligor and not merely
surety, and will be enforceable irrespective of any invalidity, irregularity
or unenforceability of any series of the Debt Securities or the Indenture or
any supplement thereto and (b) waived its right to require the Trustee or the
Holders to pursue or exhaust its legal or equitable remedies against the
applicable Subsidiary Issuer prior to exercising its rights under the
Guarantees.
RANKING
The Debt Securities issued by the Company and the Guarantees will be
unsecured obligations of the Company, and will rank on a parity with all other
unsecured and unsubordinated indebtedness of the Company. The Debt Securities
issued by a Subsidiary Issuer will be unsecured obligations of such Subsidiary
Issuer, and will rank on a parity with all other unsecured and unsubordinated
indebtedness of such Subsidiary Issuer.
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Dividend and other distributions to the Company from its various
subsidiaries may be subject to certain statutory, contractual and other
restrictions (including, without limitation, exchange controls that may be
applicable to foreign subsidiaries). The rights of any creditors of the
Company to participate in the assets of any subsidiary upon such subsidiary's
liquidation or recapitalization will be subject to the prior claims of the
subsidiary's creditors, except to the extent that the Company may itself be a
creditor with recognized claims against such subsidiary. The claims of Holders
under the Debt Securities or the Guarantees will be effectively subordinated
to the claims of creditors of the Company's subsidiaries. The Indenture does
not restrict the amount of indebtedness that may be incurred by the Company or
its subsidiaries.
GLOBAL SECURITIES IN REGISTERED FORM
Unless otherwise specified in the applicable Prospectus Supplement, the
following provisions will apply to Debt Securities issued by the Company or
Crown Cork & Seal Finance S.A.
General. The Debt Securities of a series may be issued in whole or in part
in the form of one or more Global Securities in registered form. Such Global
Securities will be registered in the name of, and deposited with, or on behalf
of, a depositary (the "Depositary") identified in the Prospectus Supplement
relating to such series. Global Securities may be issued in either temporary
or permanent form. Except as otherwise set forth below, unless and until it is
exchanged for Debt Securities in definitive form, a Global Security may not be
transferred except as a whole by the Depositary for such Global Security to a
nominee of such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by such Depositary or any
such nominee to a successor of such Depositary or a nominee of such successor
(Sections 3.01 and 3.11).
Upon the issuance of a Global Security, the Depositary for such Global
Security or its nominee will credit the accounts of persons held with it with
the respective principal amounts of the Debt Securities represented by such
Global Security. Such accounts shall be designated by the underwriters or
agents with respect to such Debt Securities or by the applicable Issuer if
such Debt Securities are offered and sold directly by such Issuer. Ownership
of beneficial interest in a Global Security will be limited to persons that
have accounts with the Depositary for such Global Security or its
nominee ("participants"), or persons that may hold interests through
participants. Ownership of beneficial interests in such Global Security will
be shown on, and the transfer of that ownership will be effected only through,
records maintained by the Depositary for such Global Security or by
participants or persons that hold through participants. The laws of some
states require that certain purchasers of securities take physical delivery of
such securities in definitive form. Such laws may impair the ability to
transfer beneficial interests in a Global Security.
So long as the Depositary for a Global Security, or its nominee, is the
owner of such Global Security, such Depositary or such nominee, as the case
may be, will be considered the sole Holder of the Debt Securities represented
by such Global Security for all purposes under the Indenture governing such
Debt Securities. Accordingly, each person holding a beneficial interest in a
Global Security must rely on the procedures of the Depositary and the
participants through which such person owns such beneficial interest to
exercise any rights and obligations of a Holder under the Indenture. Unless
otherwise specified in the Prospectus Supplement, and except as set forth
below, owners of beneficial interests in a Global Security will not be
entitled to have Debt Securities of the series represented by such Global
Security registered in their names, will not receive or be entitled to receive
physical delivery of Debt Securities of such series in definitive form and
will not be considered the Holders thereof under the Indenture governing such
Debt Securities.
Payments on Global Securities. Payments of principal of and any premium and
interest on the Debt Securities registered in the name of or held by a
Depositary or its nominee will be made to the Depositary or its nominee, as
the case may be, as the Holder of the Global Security representing such Debt
Securities. Neither the Company, the Issuer nor the Trustee for such Debt
Securities will have any responsibility or liability for any aspect of the
records relating to or payments made on account of
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beneficial ownership interests in a Global Security for such Debt Securities
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
The Company and Crown Cork & Seal Finance S.A. expect that the Depositary
for Debt Securities of a series, upon receipt of any payment of principal of
and any premium and interest on the Debt Securities in respect of a permanent
Global Security, will credit immediately participants' accounts with payments
in amounts proportionate to their respective beneficial interests in the
principal amount of such Global Security as shown on the records of such
Depositary. The Company and Crown Cork & Seal Finance S.A. also expect that
payments by participants to owners of beneficial interests in such Global
Security held through such participants will be governed by standing
instructions and customary practices, as is now the case with the securities
held for the accounts of customers in bearer form or registered in "street
name," and will be the responsibility of such participants. Receipt by owners
of beneficial interest in a temporary Global Security of payments in respect
of such temporary Global Security may be subject to restrictions. Any such
restrictions will be described in the Prospectus Supplement relating thereto.
Issuance of Definitive Debt Securities. If a Depositary for Debt Securities
of a series is at any time unwilling or unable to continue as Depositary or no
longer registered or in good standing under the Exchange Act or other statute
or regulation, and a successor depositary is not appointed by the applicable
Issuer, such Issuer will issue Debt Securities of such series in definitive
form in exchange for the Global Security or Debt Securities representing Debt
Securities of such series. In addition, if an Event of Default shall have
occurred and be continuing under the Indenture with respect to any series of
Debt Securities, the holders of beneficial interests in such Debt Securities
will be entitled to request and to receive definitive Debt Securities. The
applicable Issuer may at any time and in its sole discretion determine not to
have any Debt Securities of a series represented by one or more Global
Securities and, in such event, will issue Debt Securities of such series in
definitive form in exchange for the Global Security or Debt Securities
representing Debt Securities. Further, if the applicable Issuer so specifies
with respect to the Debt Securities of a series, each Person specified by the
Depositary of the Global Security representing Debt Securities of such series
may, on terms acceptable to such Issuer and the Depositary for such Global
Security, receive Debt Securities of such series in definitive form. In any
such instance, each Person so specified by the Depositary of the Global
Security will be entitled to physical delivery in definitive form of Debt
Securities of the series represented by such Global Security equal in
principal amount to such Person's beneficial interest in the Global Security
(Sections 3.01 and 3.11).
GLOBAL SECURITIES IN BEARER FORM
Unless otherwise specified in the applicable Prospectus Supplement, the
following provisions will apply to Debt Securities issued by Crown Cork & Seal
Finance PLC.
General. The Debt Securities of a series may be issued in whole or in part
in the form of one or more Global Securities in bearer form. Such Global
Securities will be deposited with, or on behalf of, a bearer security
depositary (the "Bearer Security Depositary") identified in the Prospectus
Supplement relating to such series. Pursuant to a Bearer Security Depositary
Agreement, such Bearer Security Depositary will issue a certificateless
depositary interest (representing a 100% interest in the underlying Global
Security) to a separate depositary (the "Depositary") identified in the
Prospectus Supplement relating to such series. For a summary of certain
provisions of the Bearer Security Depositary Agreement, see "--Bearer Security
Depositary Agreement" below.
Global Securities may be issued in either temporary or permanent form.
Except as otherwise set forth below, unless and until a Global Security is
exchanged for Debt Securities in definitive form, (a) a Global Security held
by a Bearer Security Depositary may not be transferred except as a whole by
such Bearer Security Depositary to a nominee thereof or by a nominee thereof
to such Bearer Security Depositary or another nominee thereof or by Bearer
Security Depositary or any such nominee to a successor of such Bearer Security
Depositary or a nominee of such successor and (b) the
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certificateless depositary interest in a Global Security held by a Depositary
may not be transferred except as a whole by such Depositary to a nominee
thereof or by a nominee thereof to such Depositary or another nominee thereof
or by such Depositary or any such nominee to a successor of such Depositary or
a nominee of such successor (Sections 3.01 and 3.12).
Upon confirmation by the Depositary that the Bearer Security Depositary has
custody of the Global Security and upon acceptance by the Depositary of the
certificateless depositary interest in such Global Security, the Depositary for
such Global Security or its nominee will credit the accounts of persons held
with it with the respective principal amounts of the Debt Securities
represented by such Global Security. Such accounts shall be designated by the
underwriters or agents with respect to such Debt Securities or by the
applicable Issuer if such Debt Securities are offered and sold directly by such
Issuer. Ownership of beneficial interest in a Global Security will be limited
to persons that have accounts with the Depositary for such Global Security or
its nominee ("participants"), or persons that may hold interests through
participants. Ownership of beneficial interests in such Global Security will be
shown on, and the transfer of that ownership will be effected only through,
records maintained by the Depositary for such Global Security or by
participants or persons that hold through participants. The laws of some states
require that certain purchasers of securities take physical delivery of such
securities in definitive form. Such laws may impair the ability to transfer
beneficial interests in a Global Security.
So long as the Bearer Security Depositary or its nominee is the holder of the
Global Security, the Bearer Security Depositary for a Global Security, or it
nominee, as the case may be, will be considered the sole Holder of the Debt
Securities represented by such Global Security for all purposes under the
Indenture governing such Debt Securities. Accordingly, each person holding a
beneficial interest in a Global Security must rely on the procedures of the
Bearer Security Depositary and the Depositary and the participants through
which such persons owns such beneficial interest to exercise any rights and
obligations of a Holder under the Indenture. Unless otherwise specified in the
Prospectus Supplement, and except as set forth below, owners of beneficial
interests in a Global Security will not be entitled to have Debt Securities of
the series represented by such Global Security registered in their names, will
not receive or be entitled to receive physical delivery of Debt Securities of
such series in definitive form and will not be considered the Holders thereof
under the Indenture governing such Debt Securities.
Payments on Global Securities. Payments of principal of and any premium and
interest on the Debt Securities held by a Bearer Security Depositary or its
nominee will be made to the Bearer Security Depositary or its nominee, as the
case may be, as the Holder of the Global Security representing such Debt
Securities. All such amounts will be payable by a Paying Agent located outside
of the United Kingdom. Upon receipt of any payment of principal of and any
premium and interest on the Debt Securities, the Bearer Security Depositary
will distribute all such payments to the Depositary. Neither the Company, the
Issuer nor the Trustee for such Debt Securities will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests in a Global Security for such Debt Securities
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
Crown Cork & Seal Finance PLC expects that the Depositary for Debt Securities
of a series, upon receipt of any payment of principal of and any premium and
interest on the Debt Securities in respect of a permanent Global Security, will
credit immediately participants' accounts with payments in amounts
proportionate to their respective beneficial interests in the principal amount
of such Global Security as shown on the records of such Depositary. Crown Cork
& Seal Finance PLC also expects that payments by participants to owners of
beneficial interests in such Global Security held through such participants
will be governed by standing instructions and customary practices, as is now
the case with the securities held for the accounts of customers in bearer form
or registered in "street name," and will be the responsibility of such
participants. Receipt by owners of beneficial interest in a temporary Global
Security of payments in respect of such temporary Global Security may be
subject to restrictions. Any such restrictions will be described in the
Prospectus Supplement relating thereto.
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Issuance of Definitive Debt Securities. If a Depositary or a Bearer Security
Depositary for Debt Securities of a series is at any time unwilling or unable
to continue as Depositary or Bearer Security Depositary, as the case may be,
or such Depositary is no longer registered or in good standing under the
Exchange Act or other statute or regulation, and a successor depositary or
bearer security depositary, as the case may be, is not appointed by the
applicable Issuer, such Issuer will issue Debt Securities of such series in
definitive form in exchange for the Global Security or Debt Securities
representing Debt Securities of such series. In addition, if an Event of
Default shall have occurred and be continuing under the Indenture with respect
to any series of Debt Securities, the holders of beneficial interests in such
Debt Securities will be entitled to request and receive definitive Debt
Securities. The applicable Issuer may at any time and in its sole discretion
determine not to have any Debt Securities of a series represented by one or
more Global Securities and, in such event, will issue Debt Securities of such
series in definitive form in exchange for the Global Security or Debt
Securities representing Debt Securities. Further, if the applicable Issuer so
specifies with respect to the Debt Securities of a series, each Person
specified by the Bearer Security Depositary of the Global Security
representing Debt Securities of such series may, on terms acceptable to such
Issuer, the Bearer Security Depositary and the Depositary for such Global
Security, receive Debt Securities of such series in definitive form. In any
such instance, each Person so specified by the Bearer Security Depositary will
be entitled to physical delivery in definitive form of Debt Securities of the
series represented by such Global Security equal in principal amount to such
Person's beneficial interest in the Global Security. If any definitive Debt
Securities are issued, they will be issued only in registered form (Sections
3.01, 3.11 and 3.12).
HOLDERS SHOULD BE AWARE THAT, UNDER CURRENT U.K. TAX LAW, UPON THE ISSUANCE
TO A HOLDER OF DEFINITIVE DEBT SECURITIES, SUCH HOLDER WILL BECOME SUBJECT TO
U.K. INCOME TAX (CURRENTLY 20%) TO BE WITHHELD ON ANY PAYMENTS OF INTEREST ON
THE DEBT SECURITIES AS SET FORTH UNDER "TAXATION--UNITED KINGDOM TAX
CONSIDERATIONS." IF SUCH DEFINITIVE DEBT SECURITIES ARE ISSUED PURSUANT TO THE
REQUEST OF A HOLDER FOLLOWING AN EVENT OF DEFAULT, CROWN CORK & SEAL FINANCE
PLC WILL NOT BE OBLIGATED TO PAY ANY ADDITIONAL AMOUNTS WITH RESPECT TO SUCH
DEBT SECURITIES. However, U.S. holders of definitive Debt securities may be
entitled to receive a refund of withheld amounts from the U.K. Inland Revenue
in certain circumstances. See "Taxation--United Kingdom Tax Considerations."
In addition, if a holder of a beneficial interest in a Debt Security receives
definitive Debt Securities other than pursuant to its request, such holder
will be entitled to receive Additional Amounts with respect to such Debt
Securities. See "--Payment of Additional Amounts."
Description of the Bearer Security Depositary Agreement. The following
summary of certain provisions of the Bearer Security Depositary Agreement does
not purport to be complete and is subject to, and is qualified in its entirety
by reference to, all provisions of the Bearer Security Depositary Agreement, a
copy of which has been filed with the Commission as an exhibit to the
Registration Statement.
As soon as practicable after receipt by the Bearer Security Depositary of
notice of any solicitation of consents or request for a waiver or other action
by the holders of beneficial interests in a Global Security, the Bearer
Security Depositary will mail to the Depositary a notice containing (a) such
information as is contained in such notice, (b) a statement that at the close
of business on a specified record date the Depositary will be entitled to
instruct the Bearer Security Depositary as to the consent, waiver or other
action, if any, pertaining to the Global Securities, and (c) a statement as to
the manner in which such instructions may be given. Upon the written request
of the Depositary, the Bearer Security Depositary shall endeavor insofar as
practicable to take such action regarding the requested consent, waiver or
other action in respect of the Global Securities in accordance with any
instructions set forth in such request. The Depositary is expected to follow
the procedures described under
"--Global Securities in Bearer Form--General" above with respect to soliciting
instructions from its participants. The Bearer Security Depositary will not
exercise any discretion in the granting of consents or waivers or the taking
of any other action relating to the Bearer Security Depositary Agreement or
the Indenture.
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The Bearer Security Depositary will immediately send to the Depositary a
copy of any notices, reports and other communications received relating to
Crown Cork & Seal Finance PLC or the Global Securities issued by Crown Cork &
Seal Finance PLC.
Upon the occurrence of a default with respect to the Global Securities, or
in connection with any other right of the Holder of the Global Security under
the Indenture or the Bearer Security Depositary Agreement, if requested in
writing by the Depositary, the Bearer Security Depositary will take any such
action as shall be requested in such notice, provided that the Bearer Security
Depositary has been offered reasonable security or indemnity against the
costs, expenses and liabilities that might be incurred by it in compliance
with such request by the holders of beneficial interests in a Global Security.
The Company and Crown Cork & Seal Finance PLC have agreed to pay all charges
of the Bearer Security Depositary under the Bearer Security Depositary
Agreement. The Company and Crown Cork & Seal Finance PLC have also agreed to
indemnify the Bearer Security Depositary against certain liabilities incurred
by it under the Bearer Security Depositary Agreement.
The Bearer Security Depositary Agreement may be amended by agreement among
the Company, Crown Cork & Seal Finance PLC and the Bearer Security Depositary.
The consent of the Depositary shall not be required in connection with any
amendment to the Bearer Security Depositary Agreement: (a) to cure any
inconsistency or ambiguity in such Agreement; (b) to add to the covenants and
agreements of the Bearer Security Depositary, the Company or Crown Cork & Seal
Finance PLC; (c) to effectuate the assignment of the Bearer Security
Depositary's rights and duties to a qualified successor; (d) to comply with
the Securities Act, the Exchange Act or the Investment Company Act of 1940, as
amended; or (e) to modify, alter, amend or supplement the Bearer Security
Depositary Agreement in any other manner that is not adverse to the Depositary
or the holders of beneficial interests in a Global Security. Except as set
forth above, no amendment that adversely affects the Depositary may be made to
the Bearer Security Depositary Agreement or any Global Security without the
consent of the Depositary.
Upon the issuance of definitive Debt Securities, the Bearer Security
Depositary Agreement will terminate. The Bearer Security Depositary Agreement
may be terminated upon the resignation of the Bearer Security Depositary if no
successor has been appointed within 90 days as set forth below.
The Bearer Security Depositary may at any time resign as Bearer Security
Depositary by written notice delivered to each of the Company, Crown Cork &
Seal Finance PLC and the Trustee, such resignation to take effect upon the
appointment by Crown Cork & Seal Finance PLC of a successor bearer security
depositary and its acceptance of such appointment. If at the end of 90 days
after delivery of such notice, no successor bearer security depositary has
been appointed and has accepted such appointment, the Bearer Security
Depositary may terminate the Bearer Security Depositary Agreement.
The Bearer Security Depositary will assume no obligation or liability under
the Bearer Security Agreement other than to use good faith and reasonable care
in the performance of its duties under such Agreement.
INFORMATION REGARDING DTC
If the Depositary Trust Company ("DTC") is named as the Depositary in
respect of any series of Debt Securities or any certificateless depositary
interest therein, unless otherwise specified in the applicable Prospectus
Supplement, the following information relating to DTC will apply.
DTC is a limited purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law,
a member of the Federal Reserve
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System, a "clearing corporation" within the meaning of the New York Uniform
Commercial Code, and a "clearing agency" registered pursuant to the provisions
of Section 17A of the Exchange Act. DTC was created to hold securities of its
participants and to facilitate the clearance and settlement of transactions
among its participants in such securities through electronic book-entry
changes in accounts of the participants, thereby eliminating the need for
physical movement of securities certificates. DTC participants include
securities brokers and dealers (including the Underwriters), banks, trust
companies, clearing corporations and certain other organizations, some of whom
(and/or their representatives) own DTC.
Payment of principal of and any premium, interest and Additional Amounts on
any Global Security will be made in immediately available funds. Beneficial
interests in any Global Security will trade in DTC's Same-Day Funds Settlement
System, and secondary market trading activity in such interest will therefore
settle in same-day funds.
PAYMENT OF ADDITIONAL AMOUNTS
All payments of, or in respect of, principal of and any premium and interest
on any Debt Securities issued by a Subsidiary Issuer shall be made without
withholding or deduction for, or on account of, any present or future taxes,
duties, levies, assessments or governmental charges of whatever nature imposed
or levied by or on behalf of the jurisdiction (or any political subdivision or
taxing authority thereof or therein) in which the Subsidiary Issuer is
incorporated or resident (or deemed for tax purposes to be resident) (the
"applicable taxing jurisdiction"), unless such taxes, duties, levies,
assessments or governmental charges are required by the applicable taxing
jurisdiction or any such subdivision or authority to be withheld or deducted.
In that event, the Subsidiary Issuer will pay by way of additional interest
such additional amounts of, or in respect of, principal of and any premium and
interest ("Additional Amounts") as will result (after deduction of such taxes,
duties, levies, assessments or governmental charges and any additional taxes,
duties, levies, assessments or governmental charges payable in respect of such
Additional Amounts) in the payment to each Holder of such Debt Securities of
the amounts which would have been payable in respect of such Debt Securities
had no such withholding or deduction been required, except that no Additional
Amounts shall be so payable for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge which
would not have been imposed but for the fact that such Holder:
(i) was a resident, domiciliary or national of, or engaged in
business or maintained a permanent establishment or was physically
present in, the applicable taxing jurisdiction or otherwise had some
connection with the applicable taxing jurisdiction other than the mere
ownership of such Debt Security;
(ii) presented (if presentation is required) such Debt Security for
payment in the applicable taxing jurisdiction, unless such Debt
Security could not have been presented for payment elsewhere; or
(iii) presented (if presentation is required) such Debt Security, as
the case may be, more than thirty (30) days after the date on which the
payment in respect of such Debt Security first became due and payable
or provided for, whichever is later, except to the extent that the
Holder would have been entitled to such Additional Amounts if it had
presented such Debt Security for payment on any day within such period
of thirty (30) days;
(b) any estate, inheritance, gift, sale, transfer, personal property or
similar tax, assessment or other governmental charge;
(c) any tax, assessment or other governmental charge which is payable
otherwise than by withholding or deduction from payments of, or in respect
of, principal of or any premium or interest on the Debt Securities;
(d) any tax, assessment or other governmental charge that is imposed or
withheld by reason of the failure to comply by the Holder or the beneficial
owner of a Debt Security with a request of
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the applicable Subsidiary Issuer addressed to the Holder (i) to provide
information concerning the nationality, residence or identity of the Holder
or such beneficial owner or (ii) to make any declaration or other similar
claim or satisfy any information or reporting requirement, which, in the
case of (i) or (ii), is required or imposed by a statute, treaty,
regulation or administrative practice of the applicable taxing jurisdiction
as a precondition to exemption from all or part of such tax, assessment or
other governmental charge; or
(e) any combination of items (a), (b), (c) and (d);
nor shall Additional Amounts be paid with respect to any payment of the
principal of or any premium or interest on any such Debt Security to any
Holder who is a fiduciary or partnership or other than the sole beneficial
owner of such payment to the extent such payment would be required by the laws
of the applicable taxing jurisdiction to be included in the income for tax
purposes of a beneficiary or settlor with respect to such fiduciary or a
member of such partnership or a beneficial owner who would not have been
entitled to such Additional Amounts had it been the Holder of the Debt
Security (Section 10.07).
Whenever there is mentioned, in any context, the payment of principal of, or
any premium or interest on, or in respect of, any Debt Securities of any
series issued by a Subsidiary Issuer or the net proceeds received on the sale
or exchange of any Debt Security of any series issued by a Subsidiary Issuer,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided for in the Indenture to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant
to the Indenture.
REDEMPTION FOR TAXATION REASONS
If as the result of any change in or any amendment to the laws, regulations
or published tax rulings of the applicable taxing jurisdiction affecting
taxation, or any change in the official administration, application or
interpretation of such laws, regulations or published tax rulings either
generally or in relation to any Debt Securities issued by a Subsidiary Issuer,
which change or amendment becomes effective on or after the original issue
date of such Debt Securities or which change in official administration,
application or interpretation shall not have been available to the public
prior to such issue date, it is determined by the applicable Subsidiary Issuer
that such Subsidiary Issuer (a) would be required to pay any Additional
Amounts pursuant to the Indenture or the terms of any Debt Security (i) in
respect of interest on the next succeeding Interest Payment Date or (ii) in
respect of the principal of any Discounted Securities on the date of such
determination, assuming that a payment in respect of such principal were
required to be made on such date under the terms of the Debt Securities, and
(b) such obligation cannot be avoided by the Company or the Subsidiary Issuer
taking reasonable measures available to it, in either case (i) or (ii) above
the Subsidiary Issuer may, at its option, redeem all (but not less than all)
the Debt Securities of any series in respect of which such Additional Amounts
would be so payable at any time, upon not less than 30 nor more than 60 days'
written notice as provided in the Indenture, at a Redemption Price equal to
100% of the principal amount thereof plus accrued interest to the date fixed
for redemption (except that any such Debt Securities that are Outstanding
Discounted Securities may be redeemed at the Redemption Price specified in the
terms thereof); provided, however, that (a) no such notice of redemption may
be given earlier than 60 days prior to the earliest date on which the
applicable Subsidiary Issuer would be obligated to pay such Additional Amounts
were a payment then due in respect of the Debt Securities, and (b) at the time
any such redemption notice is given, such obligation to pay such Additional
Amounts must remain in effect. If (a) the applicable Subsidiary Issuer shall
have on any date (the "Succession Date") consolidated with or merged into, or
conveyed or transferred or leased its properties and assets substantially as
an entirety to, any Successor referred to under "--Merger and Consolidation"
below which is organized under the laws of any jurisdiction other than the
United States of America, any State thereof or the District of Columbia or the
jurisdiction in which the Subsidiary Issuer is organized, (b) as the result of
any change in or any amendment to the laws, regulations or published tax
rulings of such
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jurisdiction of organization, or of any political subdivision or taxing
authority thereof or therein, affecting taxation, or any change in the
official administration, application or interpretation of such laws,
regulations or published tax rulings either generally or in relation to any
particular Debt Securities, which change or amendment becomes effective on or
after the Succession Date or which change in official administration,
application or interpretation shall not have been available to the public
prior to such Succession Date and is notified to the Subsidiary Issuer of such
series of Debt Securities, such Successor would be required to pay any
Successor Additional Amounts (as defined under "--Merger and Consolidation"
below) pursuant to the Indenture or the terms of any Debt Securities (i) in
respect of interest on any Debt Securities on the next succeeding Interest
Payment Date, or (ii) in respect of the principal of any Discounted Securities
on the date of such determination (assuming such principal were required to be
paid on such date under the terms of the Debt Securities) and (c) such
obligation cannot be avoided by the Company or such Successor taking
reasonable measures available to it, such Subsidiary Issuer or Successor may
at its option, redeem all (but not less than all) of the Debt Securities of
any series in respect of which such Successor Additional Amounts would be so
payable at any time, upon not less than 30 nor more than 60 days' written
notice as provided in the Indenture, at a Redemption Price equal to 100% of
the principal amount thereof plus accrued interest to the date fixed for
redemption (except that any such Debt Securities that are Outstanding
Discounted Securities may be redeemed at the Redemption Price specified in the
terms thereof); provided, however, that (a) no such notice of redemption may
be given earlier than 60 days prior to the earliest date on which a Successor
would be obligated to pay such Successor Additional Amounts were a payment
then due in respect of the Debt Securities, and (b) at the time any such
redemption notice is given, such obligation to pay such Successor Additional
Amounts must remain in effect (Section 11.08).
DEFINITIONS
"Attributable Debt" with respect to any sale leaseback transaction that is
subject to the restrictions described under "Certain Covenants of the Company
and the Subsidiary Issuers--Limitation on Sale and Leaseback" below means the
lesser of (a) 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 (as defined in the Indenture),
compounded semiannually, or (b) 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).
"Consolidated Net Tangible Assets" means the aggregate amount of assets
(less applicable reserves and other properly deductible items) after deducting
therefrom (a) all current liabilities and (b) all goodwill, trade names,
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.
"Principal Property" means any single manufacturing or processing plant or
warehouse (excluding any equipment or personnel located therein), other than
any such plant or warehouse or portion thereof that the Board of Directors of
the Company reasonably determines is not of material importance to the
business conducted by the Company and its Subsidiaries as an entirety.
"Restricted Subsidiary" means any Subsidiary that owns, operates or leases
one or more Principal Properties.
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"Subsidiary" means with respect to the Company 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.
CERTAIN COVENANTS OF THE COMPANY AND THE SUBSIDIARY ISSUERS
Limitation on Liens. Except as described below under "--Exempted
Indebtedness", the Company covenants that it will not, nor will it permit any
Restricted Subsidiary to, create, assume or suffer to exist any mortgage,
security interest, pledge or lien ("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 the Indenture or thereafter acquired,
without providing that the Debt Securities shall be secured equally and
ratably by such Lien with any and all other indebtedness or obligations
thereby secured, so long as such indebtedness or obligations shall be so
secured. This restriction does not apply to: (a) Liens that exist on the date
of the Indenture; (b) Liens on property or shares of capital stock or
evidences of indebtedness of any corporation existing at the time such
corporation becomes a Subsidiary; (c) Liens in favor of the Company or any
Subsidiary; (d) 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 part of construction of or improvements to property
subject to such Liens; (e) Liens on (i) 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 or not such
property is then owned or thereafter acquired); (f) mechanics', landlords' and
similar Liens arising in the ordinary course of business in respect of
obligations not due or being contested in good faith; (g) Liens for taxes,
assessments, or governmental charges or levies that are not delinquent or are
being contested in good faith; (h) Liens arising from any legal proceedings
that are being contested in good faith; (i) 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 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; (j) Liens securing industrial development or pollution control
bonds; and (k) 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 (Section 10.08).
Limitation on Sale and Leaseback. Except as described below under "--
Exempted Indebtedness", sale and leaseback transactions by the Company or any
Restricted Subsidiary (except for transactions involving temporary leases for
a term of three years or less and leases between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries) of any Principal Property are
prohibited unless either: (a) the Company or such Restricted Subsidiary would
be entitled, pursuant to the covenant described under Limitations on Liens
above, to incur a Lien on the Principal Property
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to be leased without equally and ratably securing the Debt Securities or (b)
the net proceeds of such sale are at least equal to the fair value of the
Principal Property sold and the Company will apply an amount equal to the net
proceeds of such sale to (i) the retirement of Debt Securities or Funded Debt
(as defined in the Indenture) of the Company or a Restricted Subsidiary
ranking prior to or on a parity with the Debt Securities or (ii) the
acquisition, construction or improvement of a Principal Property within 120
days of the effective date of any such arrangement (Section 10.09).
Exempted Indebtedness. Notwithstanding the limitations on Liens and sale and
leaseback transactions outlined above, the Company or any Restricted
Subsidiary may create, assume or suffer to exist Liens or enter into sale and
leaseback transactions not otherwise permitted as described above, provided
that at the time of such event, and after giving effect thereto, the sum of
outstanding indebtedness for borrowed money incurred after the date of the
Indenture and secured by such Liens plus the Attributable Debt in respect of
such sale and leaseback transactions entered into after the date of the
Indenture does not exceed 10% of Consolidated Net Tangible Assets properly
appearing on a consolidated balance sheet of the Company (Sections 1.01,
10.08(b) and 10.09(b)).
MERGER AND CONSOLIDATION
The Indenture provides that for so long as any of the Debt Securities are
Outstanding, the Company may 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, unless (a) any Person formed by such
consolidation or into which the Company is merged or to whom the Company has
conveyed, transferred or leased its properties and assets substantially as an
entirety is a corporation, partnership or trust or other entity organized and
validly existing under the laws of the United States of America, any state
thereof or the District of Columbia, and such Person assumes the Company's
obligations on the Debt Securities and under the Indenture (including the
Guarantees), (b) 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 occurred and be continuing, (c) the
Company shall expressly agree by a supplemental indenture (i) to immediately
indemnify (pursuant to the procedure described below under "--Indemnification
Procedure") the Holder of each Debt Security against (A) any tax, assessment
or governmental charge imposed on such Holder or required to be withheld or
deducted from any payment to such Holder (including any governmental charge or
withholding attributable to the Company's indemnifying such Holder) as a
consequence of such consolidation, merger, conveyance, transfer or lease and
(B) any other tax costs or other tax expenses imposed on such Holder as a
result of the act of such consolidation, merger, conveyance, transfer or lease
(except that if the Company or such Person delivers an opinion of an
independent counsel or tax consultant of recognized standing that the Holders
will not recognize income, gain or loss for U.S. federal income tax purposes
as a result of the transaction, a Holder will have such rights to
indemnification only if and when gain for U.S. federal income tax purposes is
actually imposed on such Holder), and (ii) that all payments pursuant to the
Debt Securities in respect of the principal of and any premium and interest on
the Debt Securities, as the case may be, shall be made without withholding or
deduction for, or on account of, any present or future taxes, duties,
assessments or governmental charges of whatever nature imposed or levied by or
on behalf of the jurisdiction or organization of such Person or any political
subdivision or taxing authority thereof or therein, unless such taxes, duties,
assessments or governmental charges are required by such jurisdiction or any
such subdivision or authority to be withheld or deducted, in which case such
Person will pay such additional amounts of, or in respect of, principal and
any premium and interest as will result (after deduction of such taxes,
duties, assessments or governmental charges and any additional taxes, duties,
assessments or governmental charges payable in respect of such) in the payment
of each Holder of a Debt Security of the amounts which would have been payable
pursuant to the Debt Securities had no such withholding or deduction been
required, subject to the same exceptions as would apply with respect to the
payment by such Subsidiary Issuer of Additional Amounts in respect of the Debt
Securities, and (d) if, as a result of any such consolidation or merger or
such conveyance, transfer or lease, any Principal Property of the
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Company would become subject to a lien that would not be permitted by the
Indenture, such Person takes such steps as are necessary effectively to secure
the Debt Securities equally and ratably with (or, at the option of the
Company, prior to) all indebtedness secured thereby (Section 8.01).
The Indenture provides that for so long as any of the Debt Securities of a
Subsidiary Issuer are Outstanding, such Subsidiary Issuer may 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, unless (a)
any Person formed by such consolidation or into which such Issuer is merged or
to whom such Subsidiary Issuer has conveyed, transferred or leased its
properties and assets substantially as an entirety (the "Successor") is a
corporation, partnership or trust or other entity organized and validly
existing under the laws of the jurisdiction of organization of such Person,
and such Successor assumes such Subsidiary Issuer's obligations on the Debt
Securities and under the Indenture (including any obligation to pay any
Additional Amounts), (b) 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 occurred and be continuing,
and (c) any such Successor shall expressly agree by a supplemental indenture
(i) to immediately indemnify (pursuant to the procedure described below under
"--Indemnification Procedure") the Holder of each Debt Security against (A)
any tax, assessment or governmental charge imposed on such Holder or required
to be withheld or deducted from any payment to such Holder as a consequence of
such consolidation, merger, conveyance, transfer or lease, and (B) any other
tax costs or other tax expenses of the act of such consolidation, merger,
conveyance, transfer or lease (except that if the Company or any such Person
delivers an opinion of an independent counsel or a tax consultant of
recognized standing that the Holder will not recognize income, gain or loss
for U.S. federal income tax purposes as a result of such transaction, a Holder
will have such right to indemnification only if and when gain for U.S. federal
income tax purposes is actually imposed on such Holder), and (ii) that all
payments pursuant to the Debt Securities in respect of the principal of and
any premium and interest on the Debt Securities, as the case may be, shall be
made without withholding or deduction for, or on account of, any present or
future taxes, duties, assessments or governmental charges of whatever nature
imposed or levied by or on behalf of the jurisdiction of organization of such
Successor or any political subdivision or taxing authority thereof or therein,
unless such taxes, duties, assessments or governmental charges are required by
such jurisdiction or any such subdivision or authority to be withheld or
deducted, in which case such Successor will pay such additional amounts of, or
in respect of, principal and any premium and interest ("Successor Additional
Amounts") as will result (after deduction of such taxes, duties, assessments
or governmental charges and any additional taxes, duties, assessments or
governmental charges payable in respect of such) in the payment to each Holder
of a Debt Security of the amounts which would have been payable pursuant to
the Debt Securities had no such withholding or deduction been required,
subject to the same exceptions as would apply with respect to the payment by
such Subsidiary Issuer of Additional Amounts in respect of the Debt Securities
(see "--Payment of Additional Amounts") (Section 8.02).
ASSIGNMENT
The Indenture provides that for so long as any of the Debt Securities of a
Subsidiary Issuer are outstanding, such Subsidiary Issuer may assign its
obligations under any series of Debt Securities to any other Subsidiary (the
"Subsidiary Assignee") provided that the conditions set forth under "--Merger
and Consolidation" above that would apply to the merger of such Subsidiary
Issuer into such Subsidiary Assignee are satisfied, and such Subsidiary
Assignee shall be treated as the Successor to such Subsidiary Issuer with
respect to such series of Debt Securities.
EVENTS OF DEFAULT
An Event of Default with respect to any series of Debt Securities or the
Guarantees thereof is defined in the Indenture as being: (a) default for 30
days in the payment of any installment of interest on any Debt Securities of
such series; (b) default in the payment of any principal of (or premium, if
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any, on) any Debt Securities of such series; (c) default in the deposit of any
sinking fund payments, when and as due with respect to such series; (d) default
by the Issuer or the Guarantor in the performance of any other covenants or
agreements in the Indenture contained therein for the benefit of any Debt
Securities of such series which shall not have been remedied for a period of 60
days after written notice of such default to the Issuer and the Guarantor by
the Trustee or to the Issuer, the Guarantor and the Trustee by the Holders of
at least 25% in aggregate principal amount of the Debt Securities of such
series; (e) certain events of bankruptcy, insolvency or reorganization of the
Issuer or the Guarantor or (f) any other event of default provided with respect
to Debt Securities of such series (as described in the Prospectus Supplement
with respect to such series of Debt Securities) (Section 5.01). An Event of
Default with respect to the Debt Securities of a particular series would not
necessarily constitute and Event of Default with respect to the Debt Securities
of any other series.
The Indenture provides that if an Event of Default shall have occurred and be
continuing, either the Trustee or the Holders of not less than 25% in principal
amount of the Debt Securities of such series may declare the principal of all
the Debt Securities of such series, together with any accrued interest, to be
due and payable immediately. If an Event of Default under clause (f) above
shall have occurred and be continuing, then the principal of all the Debt
Securities of such series, together with any accrued interest, will be due and
payable immediately without any declaration or other act on the part of the
Trustee or any Holder of Debt Securities of such series. Upon certain
conditions such declaration (including a declaration caused by a default in the
payment of principal or interest, the payment for which has subsequently been
provided) may be annulled by the Holders of a majority in principal amount of
the Debt Securities of a series. In addition, past defaults may be waived by
the Holders of a majority in principal amount of the Debt Securities of such
series, except a default in the payment of principal of (or premium, if any,
on) or interest on any Debt Securities of a series or in respect of a covenant
or provision of the Indenture which cannot be modified or amended without the
approval of the Holder of each Debt Security of a series (Sections 5.02 and
5.13).
The Indenture contains a provision entitling the Trustee, subject to the duty
of the Trustee during default to act with the required standard of care, to be
indemnified by the Holders of Debt Securities issued thereunder before
proceeding to exercise any right or power under the Indenture at the request of
the Holders of such Debt Securities (Section 6.03). The Indenture also provides
that the Holders of a majority in principal amount of the Outstanding
Securities of all series issued thereunder and affected (each series voting as
a separate class) may 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 Debt Securities of such
series (Section 5.12).
ASSUMPTION BY THE COMPANY
The Company may, at its option, assume the obligations of any Subsidiary
Issuer as obligor under any series of Debt Securities, provided that:
(a) the Company shall expressly assume such obligations in an assumption
agreement or supplemental indenture duly executed and delivered to the
Trustee in form reasonably satisfactory to the Trustee;
(b) immediately after giving effect to such assumption, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing; and
(c) the Company shall expressly agree in an assumption agreement or
supplemental indenture to immediately indemnify (pursuant to the procedure
described below under "--Indemnification Procedure") the Holder of each
Debt Security against (i) any tax, assesment or governmental charge imposed
on such Holder or required to be withheld or deducted from any payment to
such Holder (including any governmental charge or withholding tax
attributable to the
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Company's indemnifying such Holder) as a consequence of such assumption,
and (ii) any costs or expenses of such assumption (except that if the
Company delivers an opinion of an independent counsel or a tax consultant
of recognized standing that the Holders will not recognize income, gain or
loss for U.S. federal income tax purposes as a result of such assumption,
the Holders will have such indemnification rights only if and when gain for
U.S. federal income tax purposes is actually imposed on such Holders).
Upon any such assumption, the Company shall succeed to, and be substituted
for, and may exercise every right and power of, the applicable Subsidiary
Issuer under such series of Debt Securities and the Indenture with the same
effect as if the Company had been the Issuer thereof, and the applicable
Subsidiary shall be released from its liability as obligor under such series
of Debt Securities.
See "Taxation--United States--Income Tax Considerations--Taxation of
Dispositions" for a discussion of certain potential U.S. federal income tax
consequences of an assumption of the Notes pursuant to this provision.
INDEMNIFICATION PROCEDURE
If a transaction described above under "--Merger and Consolidation" or "--
Assumption by the Company" (an "Indemnifiable Transaction") should constitute
a taxable event for U.S. federal income tax purposes, the Company or any
Person, as the case may be, must indemnify a Holder of a Debt Security against
any tax, assessment or governmental charge imposed on such Holder or required
to be withheld or deducted from any payment to such Holder (including any
governmental charge or withholding attributable to an indemnification payment
made by or on behalf of the Company or any Person) and any other tax costs or
tax expenses attributable to such Indemnifiable Transaction. In satisfying
such indemnification obligation, the Company or any such Person, as the case
may be, shall comply with the following indemnification procedures.
Unless the Company or any such Person, as the case may be, delivers to the
Trustee by the date of an Indemnifiable Transaction an opinion of an
independent counsel or a tax consultant of recognized standing to the effect
that such Indemnifiable Transaction will not be a taxable event for U.S.
federal income tax purposes, the Company or any such Person, as the case may
be, shall deliver to each Holder on the date of such Indemnifiable Transaction
(a) notification explaining the U.S. federal income tax consequences to each
such Holder of such Indemnifiable Transaction and (b) an indemnification claim
form requesting (i) information concerning each such Holder's tax basis and
holding period in a Debt Security, (ii) a statement that the Holder is not an
entity that is exempt from U.S. federal income tax as described in Section 501
of the Code, and (iii) setting forth the address to which each such Holder
must remit such form. If the Company or any such Person delivers such an
opinion, each Holder will have the indemnification rights described herein
only if and when gain for U.S. federal income tax purposes is actually imposed
on such Holder.
When the Company or any Person, as the case may be, receives from a Holder
an indemnification claim form, the Company or such Person, as the case may be,
shall within 15 business days remit to such Holder a certified check in an
amount equal to the sum of (a) the product of any gain recognized as a result
of the Indemnifiable Transaction and the highest marginal tax rate in effect
at the time of such Indemnifiable Transaction (the "Indemnification Amount"),
and (b) the product of the Indemnification Amount and such tax rate. For these
purposes, a Holder's gain shall equal the amount by which the fair market
value of a Debt Security at the time of such Indemnifiable Transaction exceeds
such Holder's adjusted tax basis in such Debt Security.
SATISFACTION AND DISCHARGE
The Indenture will cease to be of further effect (except as to, among other
things, surviving rights of registration of transfer or exchange of Debt
Securities, as expressly provided for in the Indenture)
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as to all Debt Securities when: (a) either (i) all Debt Securities theretofore
authenticated and delivered (except, among other things, lost, stolen or
destroyed Debt Securities that have been replaced or paid) have been delivered
to the Trustee for cancellation or (ii) with respect to all Debt Securities not
theretofore delivered to the Trustee for cancellation, the applicable Issuer or
the Guarantor has deposited or caused to be deposited with the Trustee funds or
Government Obligations (as defined in the Indenture), or any combination
thereof, in an amount sufficient to pay and discharge the entire indebtedness
on the Debt Securities not theretofore delivered to the Trustee for
cancellation, for unpaid principal and interest to maturity; (b) the applicable
Issuer or the Guarantor has paid all other sums payable by it under the
Indenture; (c) the applicable Issuer or the Guarantor has delivered to the
Trustee an Officers' Certificate (as defined in the Indenture) and an Opinion
of Counsel (as defined in the Indenture) each stating that all conditions
precedent under the Indenture to the satisfaction and discharge of the
Indenture have been complied with; and (d) the applicable Issuer or the
Guarantor has delivered to the Trustee an Opinion of Counsel stating that the
Holders of the Debt Securities of all series will not recognize gain or loss
for U.S. federal income tax purposes or be subject to any taxes or recognize
gain or loss for income tax purposes in the jurisdictions in which the Issuer
is organized, resident or carries on business as a result of the exercise of
such option and will be subject to U.S. federal income tax and income taxes,
capital and other taxes, including withholding taxes in such jurisdiction on
the same amount and in the same manner and at the same times as would have been
the case if such deposit, defeasance and discharge had not occurred (Article
IV).
COVENANT DEFEASANCE
If the terms of the Debt Securities of any series so provide, the applicable
Issuer need not comply with certain restrictive covenants of the Indenture
(including those described under "--Certain Covenants of the Company and the
Subsidiary Issuers" above) if: (a) the applicable Issuer or the Guarantor
deposits in trust with the Trustee money or Government Obligations (as defined
in the Indenture), which through the payment of interest thereon and principal
thereof in accordance with their terms, will provide money, in an amount
determined in accordance with the Indenture sufficient to pay all the principal
of (and premium, if any, on) and interest on the Debt Securities of such series
when due; (b) such deposit will not result in a violation or breach of, or
constitute a default under, the Indenture or any other agreement or instrument
by which the applicable Issuer or the Guarantor is bound; (c) no Event of
Default, or event which with the giving of notice or lapse of time, or both,
would become an Event of Default, shall have occurred or be continuing on the
date of such deposit or, in the case of an Event of Default , or event which
with the giving of notice or lapse of time, or both, would become an Event of
Default, by reason of bankruptcy, insolvency or reorganization of the
applicable Issuer or the Guarantor, on the 91st day after such date; (d) the
applicable Issuer or the Guarantor has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent to defeasance have been satisfied; and (e) the applicable Issuer or
the Guarantor has delivered to the Trustee an Opinion of Counsel stating that
the Holders of the Debt Securities of such series will not recognize gain or
loss for U.S. federal income tax purposes or be subject to any taxes or
recognize gain or loss for income tax purposes in the jurisdictions in which
the Issuer is organized, resident or carries on business as a result of the
exercise of such option and will be subject to U.S. federal income tax and
income taxes, capital and other taxes, including withholding taxes in such
jurisdiction 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
(Section 10.12).
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the applicable
Issuer, the Guarantor and the Trustee with the consent of the Holders of not
less than a majority in aggregate principal amount of each series of
Outstanding Debt Securities affected by such modification or amendment;
provided, however, that no such modification or amendment may, without the
consent of the Holder of each Outstanding Debt Security affected thereby, (a)
change the stated maturity of the
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principal of, or any installment of interest on, any Debt Security, or change
the obligation of the Issuer to pay any Additional Amounts thereon, or reduce
the principal amount thereof, the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the principal amount of a
Discounted Security or any other Debt Security that would be due and payable
upon its maturity, or change any Place of Payment where, or the coin or
currency in which, any Debt Security 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; (b) reduce the percentage in principal
amount of Outstanding Debt Securities of a series necessary to waive
compliance with certain provisions of the Indenture or to waive certain
defaults; or (c) modify any of the provisions relating to supplemental
indentures requiring the consent of Holders or relating to the waiver of past
defaults or relating to the waiver of certain covenants, except to increase
the percentage of Outstanding Debt Securities of a series required for such
actions or to provide that certain other provisions of the Indenture cannot be
modified or waived without the consent of the Holder of each Debt Security
(Section 9.02).
CONCERNING THE TRUSTEE
The Company maintains banking relationships in the ordinary course of its
business with The Bank of New York. The Bank of New York is a participating
lender pursuant to one of the two credit facilities maintained by the Company.
SERVICE OF PROCESS
The Indenture provides that the Company and each Subsidiary Issuer will
irrevocably appoint CT Corporation System, 1633 Broadway, New York, New York
10019, as its agent for service of process in any suit, action or proceeding
with respect to such Indenture or the Debt Securities issued thereunder and
for actions brought under the Federal or state securities laws brought in any
Federal or state court located in New York City, and submit to such
jurisdiction.
GOVERNING LAW
The Indenture, the Debt Securities and the Guarantees will be governed by
and construed in accordance with the laws of the State of New York, but
without regard to the principles of conflicts of laws thereof; provided,
however, that all matters governing the authorization and execution of the
Indenture and Debt Securities by each Subsidiary Issuer will be governed by
and construed in accordance with the laws of the jurisdiction of incorporation
of such Subsidiary Issuer.
LIMITATIONS AFFECTING SECURITY HOLDERS
Crown Cork & Seal Finance PLC
Neither U.K. company law nor Crown Cork & Seal Finance PLC's organizational
documents impose any restriction on the ability of non-U.K. holders to hold or
vote the Debt Securities.
Crown Cork & Seal Finance S.A.
Under current French exchange control regulations, there are no limitations
on the payments that may be remitted by Crown Cork & Seal Finance S.A. to
residents of the U.S. Laws and regulations concerning foreign exchange
controls do require, however, that all payments or transfers of funds made by
a French resident to a non-resident be handled by an authorized intermediary
bank. All credit establishments in France, including all registered banks, are
accredited intermediaries.
Neither French law nor Crown Cork & Seal Finance S.A.'s charter (statuts)
presently imposes any restriction on the ability of non French holders to hold
or vote the Debt Securities.
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TAXATION
GENERAL
The following is a summary of certain United States federal income, United
Kingdom and French tax matters. The summary describes the principal United
States federal income, United Kingdom and French tax consequences of the
acquisition, ownership and disposition of Debt Securities by US Holders, who
hold the Debt Securities as capital assets and whose functional currency is the
United States Dollar. For purposes of this summary, a "US Holder" is any
initial purchaser of the Debt Securities that purchases such securities at
their issue price pursuant to this offering and is (a) a citizen or resident of
the United States, (b) a corporation, partnership, or other entity created or
organized in or under the law of the United States or any political subdivision
thereof, or (c) an estate or trust the income of which is includible in gross
income for United States federal income tax purposes regardless of source. This
summary does not address all aspects of United States federal income, United
Kingdom or French taxes that may be relevant to an investment in the Debt
Securities, nor does it address the United States, United Kingdom or French tax
treatment applicable to any particular category of investors, including dealers
in securities, banks, insurance companies, and tax exempt organizations.
The statements below regarding United States federal income, United Kingdom
and French tax consequences are based upon current United States federal
income, United Kingdom and French tax legislation, case law, and practices as
of the date of this Prospectus, which may change. Tax consequences different
from those discussed below could then result.
The statements below regarding United States tax consequences are based upon
the provisions of the United States Internal Revenue Code of 1986, as amended
(the "Code") and regulations, rulings and judicial decisions thereunder as of
the date of this Prospectus. Such authorities may be repealed, revoked or
modified, in which case tax consequences different from those discussed below
could result.
PERSONS CONSIDERING THE PURCHASE, OWNERSHIP OR DISPOSITION OF DEBT SECURITIES
SHOULD CONSULT THEIR OWN TAX ADVISORS CONCERNING THE UNITED STATES FEDERAL
INCOME, UNITED KINGDOM AND FRENCH TAX CONSEQUENCES IN LIGHT OF THEIR PARTICULAR
SITUATIONS AS WELL AS ANY CONSEQUENCES ARISING UNDER THE LAWS OF ANY OTHER
TAXING JURISDICTION.
UNITED STATES INCOME TAX CONSIDERATIONS
Taxation of Interest--The Company as Issuer. The gross amount of interest
paid or accrued in respect of the Debt Securities generally will be includible
in the gross income, generally as ordinary income, of a US Holder as ordinary
income. The US Holder will be required to take such interest into account on
the date the interest is received or accrued in accordance with the US Holder's
method of accounting for federal income tax purposes.
Taxation of Interest--A Subsidiary Issuer as Issuer. The gross amount of
interest (including Additional Amounts, if any, accrued or received in respect
of the Debt Securities) generally will be includible in the gross income of a
US Holder and such income generally will be treated as foreign source passive
income for United States federal income tax purposes.
Taxation of Dispositions. A US Holder that owns the Debt Securities as
capital assets will recognize gain or loss for United States federal income tax
purposes upon the sale or other disposition of the Debt Securities in an amount
equal to the difference between the amount realized and the US Holder's tax
basis in the Debt Securities. Gain or loss recognized by a US Holder on a sale
or other disposition of the Debt Securities will be capital gain or loss and
will be long-term capital gain or loss if the Debt Securities have been held
for more than one year.
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A US Holder of a Debt Security may recognize gain or loss for U.S. federal
income tax purposes equal to the difference between the fair market value of
the Debt Security and such US Holder's adjusted tax basis in such Debt Security
in the event that (a) the Company consolidates with or merges into any other
Person or conveys, transfers or leases its properties and assets substantially
as an entirety to any other Person, (b) the Company assumes the obligations of
a Subsidiary Issuer under any series of Debt Securities or (c) a Subsidiary
Issuer consolidates or merges into any other Person or conveys, transfers or
leases its properties and assets substantially as an entirety to any other
Person. The Indenture provides that, where a US Holder (other than entities
then exempt from taxation under Section 501 of the Code) recognizes gain for
U.S. federal income tax purposes as a result of such a merger or assumption,
any such Person (in the case of (b) or (c)) or the Company (in the case of (b))
shall indemnify such US Holder of a Debt Security in an amount equal to the sum
of (i) the Indemnification Amount and (ii) the product of the Indemnification
Amount and the highest marginal tax rate in effect at the time of such above-
described transaction. For a description of the procedures by which a US Holder
may exercise its indemnification rights, see "--Indemnification Procedure"
above.
Original Issue Discount. The Debt Securities may be issued with original
issue discount for United States federal income tax purposes. US Holders of the
Debt Securities will be required to include original issue discount in gross
income as it accrues, on a constant-yield basis, regardless of their method of
accounting.
The amount of the original issue discount in the Debt Securities will be the
difference between the stated redemption price at maturity and the issue price
of the Debt Securities. The "issue price" of the Debt Securities will be the
price at which a substantial amount of the Debt Securities are sold to the
public for cash (excluding sales to bond houses, brokers or similar persons or
organizations acting in the capacity as underwriters, placement agents or
wholesalers).
The "stated redemption price" at maturity of a debt instrument is the total
of all payments to be made on the instrument other than payments of qualified
stated interest. "Qualified stated interest" includes only interest that is
unconditionally payable in cash or property (other than debt instruments of the
Issuer) at least annually at a single fixed rate that appropriately takes into
account the length of the interval between payments.
Holders of the Debt Securities must include in gross income, as interest, the
daily portions of original issue discount for each day during the taxable year
on which the Debt Securities were held. The daily portions of the original
issue discount will be determined by allocating to each day in each accrual
period the ratable portion of the original issue discount allocable to that
period. (The accrual periods may be of any length and may vary in length over
the term of a debt instrument, provided that each accrual period is no longer
than one year, and each scheduled payment of interest or principal occurs on
either the final day or the first day of an accrual period.) The original issue
discount allocable to an accrual period will equal the product of the adjusted
issue price of the Debt Securities at the beginning of the accrual period and
the Debt Securities' yield to maturity. The adjusted issue price of the Debt
Securities at the start of any accrual period will be the issue price of the
Debt Securities, increased by the amount of the original issue discount that
has accrued in all previous accrual periods and decreased by the amount of any
payments previously made on the Debt Securities and any payment made on the
first day of the current accrual period. Because the US Holders of the Debt
Securities will include original issue discount in income as it accrues, actual
payments of cash interest (other than qualified stated interest) on the Debt
Securities will not trigger any additional interest income to the holders.
Information Reporting and Backup Withholding. The Issuer will provide annual
information statements to the US Holders of the Debt Securities and information
returns to the United States Internal Revenue Service (the "IRS") regarding the
amount of original issue discount, if any, that accrued on the Debt Securities
during the year.
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The Issuer, its paying agent, or other withholding agent may be required to
withhold and remit to the IRS 31% of the interest payments on the Debt
Securities if the IRS notifies the Issuer, its paying agent, or other
withholding agent that the US Holder thereof is subject to backup withholding
or if such US Holder fails to provide a taxpayer identification number,
provides an obviously incorrect taxpayer identification number, fails to
certify that such Holder is not subject to backup withholding, or otherwise
fails to comply with applicable requirements of the backup withholding rules.
Certain Holders (including, among others, corporations) are not subject to
these backup withholding rules. Any amount paid as backup withholding would be
creditable against the US Holder's United States federal income tax liability.
UNITED KINGDOM TAX CONSIDERATIONS
Payments on the Debt Securities. Payments of interest to a US Holder of a
Debt Security will not be subject to United Kingdom withholding taxes provided
that the Debt Security is, as anticipated, and continues to be, listed on a
recognized stock exchange and remains in bearer form and the payments are, as
anticipated, and continue to be, (a) made by or through a person who is not in
the United Kingdom, (b) made by or through a person in the United Kingdom and
the Debt Security is held in a recognized clearing system (including DTC,
Euroclear and Cedel) or (c) made by or through a person in the United Kingdom
and a person who is not resident in the United Kingdom beneficially owns the
Debt Security and is beneficially entitled to the interest. A declaration in a
prescribed form must be made by the depositary of the recognized clearing
system for (b) above to apply or by the non-resident beneficial owner or a
paying agent for (c) above to apply.
Payments of interest to a US Holder of an interest in a Debt Security that is
not described in the preceding paragraph will be subject to United Kingdom
withholding taxes at a rate currently of 20%. Such a US Holder may be entitled
to receive Additional Amounts for any United Kingdom tax that is required to be
withheld with respect to any such Debt Security. See "Description of Debt
Securities and Guarantees--Payment of Additional Amounts." Recipients of
Additional Amounts who are US Holders should generally be entitled to claim a
refund of any such United Kingdom withholding tax pursuant to the United
States/United Kingdom Double Taxation Convention (the "Income Tax Treaty").
However, it is possible that a US Holder may have difficulty in establishing
his claim to a refund, in which case such claim may be denied by the United
Kingdom Inland Revenue.
Where a United Kingdom person acts as a collecting agent, i.e., either (a)
acts as custodian of the Debt Securities and receives interest on the Debt
Securities, or directs that interest on the Debt Securities be paid to another
person, or consents to such payment or (b) collects or secures payment of, or
receives interest on, the Debt Securities for a Holder (except by means of
clearing a check or arranging for the clearing of a check), the collecting
agent will be required to withhold on account of United Kingdom income tax at
the rate currently 20% unless the person beneficially entitled to the interest
and the related Debt Security is either not resident in the United Kingdom or
is specified by regulations or another exemption applies. In the case of the
Debt Securities, the collecting agent will not be a United Kingdom person.
If the interest payable on the Debt Securities is not subject to United
Kingdom withholding tax, then interest on the Debt Securities will not be
chargeable to United Kingdom tax in the hands of a US Holder or any other
beneficial owner who is not resident in the United Kingdom unless such owner
carries on a trade, profession or vocation in the United Kingdom through a
United Kingdom branch or agency in connection with which the interest is
received to which the Debt Security are attributable. There are certain
exemptions for interest received by certain categories of agent (such as some
brokers and investment managers).
Original Issue Discount. Debt Securities in respect of which the amount
payable on redemption exceeds or could exceed the issue price may constitute
"relevant discounted securities" for United
24
<PAGE>
Kingdom tax purposes. In such a case a holder may be liable to United Kingdom
income tax or corporation tax on any profit or gain arising on a transfer of
redemption of such Debt Securities. For these purposes, transfer means transfer
by a sale, exchange, gift or otherwise including a deemed transfer on the death
of a holder. However, a US Holder or any other beneficial owner who is not
resident in the United Kingdom will not be liable for United Kingdom tax on the
discount, whether by way of withholding or otherwise, unless such US Holder or
owner carries on a trade, profession or vocation in the United Kingdom through
a United Kingdom branch or agency in connection with which the discount on the
Debt Securities is attributable.
Sale or Disposition of Debt Securities. A US Holder will not be subject to
United Kingdom tax (including withholding tax) on the sale or disposition of a
Debt Security, unless the Holder carries on a trade, profession or vocation in
the United Kingdom through a branch or agency and the Debt Securities are or
have been held or acquired for the purpose of such trade, profession or
vocation of such branch or agency.
Transfer Taxes. No United Kingdom stamp duty or stamp duty reserve tax will
be payable on the acquisition or transfer of, or agreement to transfer an
interest, in a Debt Security.
FRENCH TAX CONSIDERATIONS
Because the Debt Securities are "obligations" within the meaning of Article
284 of the French company law of July 24, 1966, all payments made on the Debt
Securities to Holders which are not domiciled in or a resident of or do not
have a permanent establishment in or otherwise have a personal or business
connection with the Republic of France will be made free and clear of, and
without withholding or deduction for, any present or future tax, duty,
assessment or other governmental charge of whatever nature imposed, levied,
collected or withheld thereon by or on behalf of the Republic of France or any
political subdivision or taxing authority thereof or therein, unless such
withholding or deduction is required by French law. See "Description of the
Debt Securities and Guarantees--Payment of Additional Amounts," "--Redemption
for Taxation Reasons." Currently, the Debt Securities will be entitled to the
special tax treatment provided by Article 131--quarter of the French General
Tax Code and, accordingly, under existing French law, neither the Company, any
Subsidiary Issuer, nor any paying agent will be obligated to deduct or withhold
for or on account of any French taxes in respect of any payments on the Debt
Securities. If as a result of a change in French law, deduction or withholding
with respect to a payment of interest or principal on the Debt Securities is
required, current French law would not permit the payment of Additional Amounts
by a Subsidiary Issuer insofar as Article 1678 of the French General Tax Code
would prohibit a Subsidiary Issuer from bearing any withholding or deduction
for tax. In such case, the Company would be obligated to pay such Additional
Amounts.
In general, a US Holder will not be subject to French tax on any capital gain
derived from the redemption, sale or exchange of the Debt Securities, provided
that the US Holder is not domiciled in or a resident of or does not have a
permanent establishment in or otherwise have a personal or business connection
with the Republic of France.
CERTAIN PENNSYLVANIA TAXES
Debt Securities held by or for certain persons, principally individuals and
partnerships resident in Pennsylvania, are subject to the Pennsylvania
Corporate Loans Tax, the annual rate of which is currently $4 per $1,000
principal amount of the debt, and this tax will be withheld by the Company from
interest paid to such persons. Persons resident in Pennsylvania holding Debt
Securities for the benefit of nonresidents should consult their tax advisors
regarding the applicability of the Pennsylvania Corporate Loans Tax.
25
<PAGE>
As a result of the payment of the Corporate Loans Tax, the Debt Securities
will not be subject to any existing Pennsylvania (County) personal property
taxes.
PLAN OF DISTRIBUTION
The Company or any Subsidiary Issuer may sell the Debt Securities (a) through
underwriters or dealers; (b) through agents; (c) directly to one or more
institutional purchasers; or (d) through a combination of any such methods of
sale. The Prospectus Supplement with respect to the Debt Securities offered
thereby will set forth the terms of the offering of such Debt Securities,
including the name or names of any underwriters, dealers or agents, the
purchase price of such Debt Securities and the proceeds to the Company or the
applicable Subsidiary Issuer from such sale, any underwriting discounts and
other items constituting compensation to underwriters, dealers or agents, any
initial public offering price, any discounts or concessions allowed or
reallowed or paid by underwriters or dealers to other dealers and any
securities exchanges on which such Debt Securities may be listed. Only
underwriters so named in the Prospectus Supplement are deemed to be
underwriters in connection with the Debt Securities offered thereby.
If underwriters or dealers are used in the sale, the Debt Securities will be
acquired by the underwriters or dealers for their own account and may be resold
from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. The Debt Securities may be offered to the public either
through underwriting syndicates represented by one or more managing
underwriters or directly by one or more of such firms. Unless otherwise set
forth in the Prospectus Supplement, the obligations of the underwriters to
purchase such Debt Securities will be subject to certain conditions precedent,
and the underwriters will be obligated to purchase all of the Debt Securities
offered by the Prospectus Supplement relating to such series if any are
purchased. Any initial public offering and any discounts or concessions allowed
or reallowed or paid to dealers may be changed from time to time.
The Debt Securities may be sold directly by the Company or any Subsidiary
Issuer or through agents designated by the Company or a Subsidiary Issuer from
time to time. Any agent involved in the offering and sale of the Debt
Securities in respect of which this Prospectus is delivered will be named, and
any commissions payable by the Company or a Subsidiary Issuer to such agent (or
the method by which such commissions can be determined) will be set forth, in
the Prospectus Supplement. Unless otherwise indicated in the Prospectus
Supplement, any such agent will be acting on a best efforts basis for the
period of its appointment.
If so indicated in the Prospectus Supplement, the Company or a Subsidiary
Issuer will authorize underwriters, dealers or other persons acting as the
Company's or the Subsidiary Issuer's agents to solicit offers by certain
specified institutions to purchase Debt Securities from the Company or the
Subsidiary Issuer at the public offering price set forth in the Prospectus
Supplement pursuant to contracts providing for payment and delivery on a
specified date in the future. Institutional investors to which such offers may
be made, when authorized, include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and such other institutions as may be approved by the Company or
the Subsidiary Issuer. The obligations of any such purchasers pursuant to such
delayed delivery and payment arrangements will not be subject to any conditions
except that such purchase shall not at the time of delivery be prohibited under
the laws of any jurisdiction to which such purchaser is subject. The Prospectus
Supplement will set forth the commission payable for solicitation of such
contracts. The underwriters and other persons soliciting such contracts will
have no responsibility for the validity or performance of any such contracts.
Each underwriter, dealer and agent participating in the distribution of any
Debt Securities that are issuable as Bearer Securities will agree that it will
not offer, sell or deliver, directly or indirectly, Bearer
26
<PAGE>
Securities in the United States or to United States persons (other than
qualifying financial institutions) in connection with the original issuance of
such Debt Securities. Each of the Company, the Subsidiary Issuers and any
underwriter, dealer or agent participating in the distribution of any Debt
Securities will not publicly offer or sell, directly or indirectly, any Debt
Securities in the Republic of France or to any resident in the Republic of
France and will not publicly circulate or distribute any offering or placement
material in the Republic of France or to any resident of the Republic of
France.
Underwriters, dealers and agents may be entitled under agreements entered
into with the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act, or to contribution
by the Company with respect to payments they may be required to make in respect
thereof. Underwriters, dealers and agents may be customers of, engage in
transactions with, or perform services for the Company in the ordinary course
of business.
Each series of Debt Securities will be a new issue of securities with no
established trading market. In the event that Debt Securities of a series
offered hereunder are not listed on a national securities exchange, certain
broker-dealers may make a market in the Debt Securities, but will not be
obligated to do so and may discontinue any market making at any time without
notice. No assurance can be given that any broker-dealer will make a market in
the Debt Securities of any series or as to the liquidity of the trading market
for the Debt Securities.
LEGAL MATTERS
The validity of the Debt Securities and Guarantees offered by the Company
hereby will be passed upon for the Company by Dechert Price & Rhoads,
Philadelphia, Pennsylvania. The validity of the Debt Securities offered hereby
by Crown Cork & Seal Finance PLC will be passed upon for the Company by Titmuss
Sainer Dechert, London, England. The validity of the Debt Securities offered
hereby by Crown Cork & Seal Finance S.A. will be passed upon for the Company by
Jeantet & Associes, Paris, France. Certain other legal matters in connection
with the offerings contemplated herein will be passed upon for the Company by
Richard L. Krzyzanowski, Executive Vice President, Secretary and General
Counsel for the Company, and Dechert Price & Rhoads. Certain legal matters in
connection with the offerings contemplated herein are being passed upon for the
Underwriters by Cravath, Swaine & Moore, New York, New York. Mr. Krzyzanowski
is a director of the Company and, as of March 1, 1996, beneficially owned
0.108% of the outstanding shares of Common Stock. Chester C. Hilinski, of
counsel to Dechert Price & Rhoads, is a director of the Company and, as of
March 1, 1996, beneficially owned 0.013% of the outstanding shares of Common
Stock.
EXPERTS
The financial statements incorporated in this Prospectus by reference to the
Company's Annual Report on Form 10-K for the year ended December 31, 1995, have
been so incorporated in reliance on the report of Price Waterhouse LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting. The audited financial statements of CarnaudMetalbox as
of December 31, 1994 and 1993 and for each of the two years ending on December
31, 1994 and 1993 included in the Company's Current Report on Form 8-K filed on
March 1, 1996, as amended, incorporated by reference in this Prospectus have
been so incorporated in reliance on the report of Arthur Andersen LLP,
independent accountants, and Befec-Price Waterhouse and Claude Chevalier,
statutory auditors, given on the authority of said firms as experts in auditing
and accounting. The audited financial statements of CarnaudMetalbox as of
December 31, 1995 and for the year ended December 31, 1995 included in such
Current Report on Form 8-K have been so incorporated in reliance on the report
of Arthur Andersen LLP, independent accountants, and Befec-Price Waterhouse and
Salustro Reydel, statutory auditors, given on the authority of said firms as
experts in auditing and accounting.
27
<PAGE>
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY IN-
FORMATION OR TO MAKE ANY REPRESENTATIONS, OTHER THAN THOSE CONTAINED IN OR IN-
CORPORATED BY REFERENCE IN THIS PROSPECTUS SUPPLEMENT OR THE ACCOMPANYING PRO-
SPECTUS, IN CONNECTION WITH THE OFFER CONTAINED IN THIS PROSPECTUS SUPPLEMENT
AND THE ACCOMPANYING PROSPECTUS, AND, IF GIVEN OR MADE, ANY SUCH INFORMATION
OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY, ANY SUBSIDIARY ISSUER OR ANY UNDERWRITER, DEALER OR AGENT. THIS PRO-
SPECTUS SUPPLEMENT AND THE ACCOMPANYING PROSPECTUS DO NOT CONSTITUTE AN OFFER
TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED
HEREBY BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS
NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT
QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER
OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS SUPPLEMENT AND THE
ACCOMPANYING PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUM-
STANCES CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF
THE COMPANY OR ANY SUBSIDIARY ISSUER SINCE THE DATE HEREOF.
---------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
PROSPECTUS SUPPLEMENT
<S> <C>
The Company................................................................ S-4
The Subsidiary Issuers..................................................... S-6
Use of Proceeds............................................................ S-7
Capitalization............................................................. S-8
Summary Financial Information.............................................. S-9
Unaudited Pro Forma Statements of Operations............................... S-11
Ratio of Earnings to Fixed Charges......................................... S-15
Description of the Notes and Guarantees ................................... S-16
Underwriting............................................................... S-17
Experts.................................................................... S-18
PROSPECTUS
Available Information...................................................... 2
Incorporation of Certain Documents by Reference............................ 2
The Company................................................................ 3
The Subsidiary Issuers..................................................... 3
Use of Proceeds............................................................ 4
Description of Debt Securities and Guarantees.............................. 4
Taxation................................................................... 22
Plan of Distribution....................................................... 26
Legal Matters.............................................................. 27
Experts.................................................................... 27
</TABLE>
UNTIL , 1996, (25 DAYS AFTER THE DATE OF THIS PROSPECTUS SUPPLEMENT), ALL
DEALERS EFFECTING TRANSACTIONS IN THE NOTES OF CROWN CORK & SEAL FINANCE PLC
AND CROWN CORK & SEAL FINANCE S.A. OFFERED HEREBY, WHETHER OR NOT PARTICIPAT-
ING IN THIS DISTRIBUTION, MAY BE REQUIRED TO DELIVER A PROSPECTUS SUPPLEMENT.
THIS IS IN ADDITION TO THE OBLIGATION OF DEALERS TO DELIVER A PROSPECTUS SUP-
PLEMENT WHEN ACTING AS UNDERWRITERS AND WITH RESPECT TO THEIR UNSOLD ALLOT-
MENTS OR SUBSCRIPTIONS.
$1,200,000,000
[LOGO OF CROWN CORK & SEAL COMPANY APPEARS HERE]
CROWN CORK & SEAL COMPANY, INC.
CROWN CORK & SEAL FINANCE PLC
IRREVOCABLY AND UNCONDITIONALLY GUARANTEED BY
CROWN CORK & SEAL COMPANY, INC.
CROWN CORK & SEAL FINANCE S.A.
IRREVOCABLY AND UNCONDITIONALLY GUARANTEED BY
CROWN CORK & SEAL COMPANY, INC.
SALOMON BROTHERS INC
CS FIRST BOSTON
CHASE SECURITIES INC.
J.P. MORGAN & CO.
PROSPECTUS SUPPLEMENT
DATED DECEMBER , 1996
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the expenses of issuance and distribution
estimated* to be incurred in connection with the issuance and distribution of
the securities registered hereby, other than underwriting discounts and
commissions:
<TABLE>
<S> <C>
SEC registration fee............................................. $393,939
Rating agencies' fees............................................ 330,000
Trustee's fees................................................... 90,000
Printing expenses................................................ 150,000
Legal fees and expenses.......................................... 75,000
Accountants' fees and expenses................................... 25,000
Blue Sky fees and expenses....................................... 0
Miscellaneous.................................................... 50,000
----------
Total.......................................................... $1,113,939
==========
</TABLE>
- --------
* All items estimates except for SEC registration fee.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under the Pennsylvania Business Corporation Law of 1988, as amended (the
"PBCL"), Pennsylvania corporations, such as Crown Cork & Seal Company, Inc.
(the "Company"), have the power to indemnify any person acting as a
representative of the corporation against liabilities incurred in such
capacity provided certain standards are met, including good faith and the
belief that the particular action or failure to take action is in the best
interests of the corporation. In general, this power to indemnify does not
exist in the case of actions against any person by or in the right of the
corporation if the person otherwise entitled to indemnification shall have
been adjudged to be liable to the corporation unless a court determines that
despite the adjudication of liability but in view of all the circumstances of
the case, the person is fairly and reasonably entitled to indemnity for
expenses that the court deems proper. A corporation is required to indemnify
representatives of the corporation against expenses they may incur in
defending actions against them in such capacities if they are successful on
the merits or otherwise in the defense of such actions. In all other cases, if
a representative of the corporation acted, or failed to act, in good faith and
in a manner he or she reasonably believed to be in or not opposed to the best
interests of the corporation, indemnification is discretionary, except as may
be otherwise provided by a corporation's bylaws, agreement, vote of
shareholders or disinterested directors or otherwise. Indemnification so
otherwise provided may not, however, be made if the act or failure to act
giving rise to the claim for indemnification is determined by a court to have
constituted willful misconduct or recklessness. Expenses (including attorney's
fees) incurred in defending any such action may be paid by the corporation in
advance of the final disposition of the action upon receipt of an undertaking
by or on behalf of the representative to repay the amount if it is ultimately
determined that he or she is not entitled to be indemnified by the
corporation.
Section 1746 of the PBCL provides that the foregoing provisions shall not be
deemed exclusive of any other rights to which a person seeking indemnification
may be entitled under, among other things, any bylaw provision, provided that
no indemnification may be made in any case where the act or failure to act
giving rise to the claim for indemnification is determined by a court to have
constituted willful misconduct or recklessness.
II-1
<PAGE>
The Company's Bylaws provide that the Company shall indemnify to the fullest
extent permitted by applicable law any person who was or is a party or is
threatened to be made a party to or is otherwise involved in any threatened,
pending or completed action, suit or proceeding by reason of the fact that
such person is or was a director or officer of the Company, against all
liability, loss and expense (including attorney's fees and amounts paid in
settlement) actually and reasonably incurred by such person in connection with
such proceeding, whether or not the indemnified liability arises or arose from
any proceeding by or in the right of the Company. The Company's Bylaws also
provide that expenses incurred by a director or officer in defending (or
acting as a witness in) a proceeding may (and, following a "change in control
of the Company" shall) be paid by the Company in advance of the final
disposition of such proceeding, subject to the provisions of applicable law,
upon receipt of an undertaking by or on behalf of the director or officer to
repay such amount if it shall ultimately be determined that such person is not
entitled to be indemnified by the Company under applicable law. Additionally,
the Company's Bylaws limit directors' personal liability for monetary damages
for any action taken, or any failure to take any action, unless (1) the
director has breached or failed to perform the duties of his or her office
under the PBCL's standard of care and justifiable reliance provisions and (2)
the breach or failure to perform constitutes self-dealing, willful misconduct
or recklessness. However, these provisions do not apply to the responsibility
or liability of a director pursuant to any criminal statute or for the payment
of taxes pursuant to local, state or federal law. The Company has purchased
directors and officers' liability insurance covering certain liabilities which
may be incurred by the officers and directors of the Registrant in connection
with the performance of their duties.
The above provisions of the Company's Bylaws provide for indemnification of
(but not advancement of expenses to) directors and officers of subsidiaries of
the Company, such as Crown Cork & Seal Finance PLC and Crown Cork & Seal
Finance S.A., to the same extent as directors and officers of the Company. In
addition, the Articles of Association of Crown Cork & Seal Finance PLC provide
that, subject to applicable law, every director and officer shall be entitled
to be indemnified out of its assets against all costs, charges, losses,
expenses and liabilities incurred or sustained by him in the execution and
discharge of his duties or otherwise in relation thereto. With respect to
Crown Cork & Seal Finance S.A., French company law does not allow companies to
indemnify directors and officers (directeurs generaux) in their capacity as
directors and officers, respectively.
ITEM 16. EXHIBITS
The Exhibit Index appearing on page II-10 is hereby incorporated by
reference.
ITEM 17. UNDERTAKINGS
The undersigned Registrants hereby undertake:
(1) (a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
provided, however, that the undertakings set forth in paragraphs (i) and
(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrants pursuant to section 13 or section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in
this Registration Statement.
II-2
<PAGE>
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(d) If the registrant is a foreign private issuer, to file a post-
effective amendment to the registration statement to include any financial
statements required by Rule 3-19 of Regulation S-X at the start of any
delayed offering or throughout a continuous offing. Financial statements
and information otherwise required by Section 10(a)(3) of the Act need not
be furnished, provided that the registrant includes in the prospectus, by
means of a post-effective amendment, financial statements required pursuant
to this paragraph (a)(4) and other information necessary to ensure that all
other information in the prospectus is at least as current as the date of
those financial statements. Notwithstanding the foregoing, with respect to
registration statements on Form F-3, a post-effective amendment need not be
filed to include financial statements and information required by Section
10(a)(3) of the Act or Rule 3-19 of Regulation S-X if such financial
statements and information are contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the Form F-3.
(2) For purposes of determining any liability under the Securities Act of
1933, each filing of the Company's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrants pursuant to the foregoing provisions
described in Item 15 above, the Registrants have been informed that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrants of expenses incurred or paid by
a director, officer, or controlling person of the Registrants in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the Registrants will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act of 1933
and will be governed by the final adjudication of such issue.
(4)(a) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(b) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
indicated below certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Philadelphia, Commonwealth of Pennsylvania, on
November 26, 1996.
Crown Cork & Seal Company, Inc.
/s/ William J. Avery
By: _________________________________
Name: William J. Avery
Title: Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes William J.
Avery, Alan W. Rutherford, Richard L. Krzyzanowski and Craig R.L. Calle, and
each of them, his true and lawful attorneys-in-fact and agents each with full
power of substitution and resubstitution for him and in his name, place and
stead, in any and all capacities to sign any and all necessary documents
including, without limitation, any and all instruments or documents required to
comply with state or foreign securities laws, and any and all amendments
(including pre- or post-effective amendments) to this Registration Statement on
Form S-3 (and any related Registration Statement filed under Rule 462(b) under
the Securities Act of 1933, as amended) and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission or any other applicable authorities, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that each such
attorney-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities indicated
on November 26, 1996.
SIGNATURES TITLE DATE
/s/ William J. Avery Chairman of the November 26,
- ------------------------------------- Board and Chief 1996
WILLIAM J. AVERY Executive Officer
(Principal
Executive Officer)
/s/ Alan W. Rutherford Executive Vice November 26,
- ------------------------------------- President, Chief 1996
ALAN W. RUTHERFORD Financial Officer
and Director
(Principal
Financial Officer)
II-4
<PAGE>
SIGNATURES TITLE DATE
/s/ Timothy J. Donahue Vice President and November 26,
- ------------------------------------- Controller 1996
TIMOTHY J. DONAHUE (Principal
Accounting Officer)
/s/ Henry E. Butwel Director November 26,
- ------------------------------------- 1996
HENRY E. BUTWEL
/s/ Charles F. Casey Director November 26,
- ------------------------------------- 1996
CHARLES F. CASEY
/s/ Francis X. Dalton Director November 26,
- ------------------------------------- 1996
FRANCIS X. DALTON
/s/ Guy de Wouters Director November 26,
- ------------------------------------- 1996
GUY DE WOUTERS
/s/ Chester C. Hilinski Director November 26,
- ------------------------------------- 1996
CHESTER C. HILINSKI
/s/ Richard L. Krzyzanowski Director November 26,
- ------------------------------------- 1996
RICHARD L. KRZYZANOWSKI
/s/ Josephine C. Mandeville Director November 26,
- ------------------------------------- 1996
JOSEPHINE C. MANDEVILLE
/s/ Michael J. McKenna Director November 26,
- ------------------------------------- 1996
MICHAEL J. MCKENNA
II-5
<PAGE>
SIGNATURES TITLE DATE
/s/ Felix G. Rohatyn Director November 26,
- ------------------------------------- 1996
FELIX G. ROHATYN
/s/ Jean-Pierre Rosso Director November 26,
- ------------------------------------- 1996
JEAN-PIERRE ROSSO
/s/ J. Douglass Scott Director November 26,
- ------------------------------------- 1996
J. DOUGLASS SCOTT
/s/ Ernest-Antoine Seilliere Director November 26,
- ------------------------------------- 1996
ERNEST-ANTOINE SEILLIERE
/s/ Robert J. Siebert Director November 26,
- ------------------------------------- 1996
ROBERT J. SIEBERT
/s/ Harold A. Sorgenti Director November 26,
- ------------------------------------- 1996
HAROLD A. SORGENTI
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
indicated below certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Philadelphia, Commonwealth of Pennsylvania, on
November 26, 1996.
Crown Cork & Seal Finance PLC
By: /s/ Alan W. Rutherford
----------------------------------
Name: Alan W. Rutherford
Title: Managing Director
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes William J.
Avery, Richard L. Krzyzanowski and Craig R.L. Calle, and each of them, his true
and lawful attorneys-in-fact and agents each with full power of substitution
and resubstitution for him and in his name, place and stead, in any and all
capacities to sign any and all necessary documents including, without
limitation, any and all instruments or documents required to comply with state
or foreign securities laws, and any and all amendments (including pre- or post-
effective amendments) to this Registration Statement on Form S-3 (and any
related Registration Statement filed under Rule 462(b) under the Securities Act
of 1933, as amended) and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission
or any other applicable authorities, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might or could do
in person, hereby ratifying and confirming all that each such attorney-in-fact,
or his substitute or substitutes, may do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities indicated
on November 26, 1996.
SIGNATURES TITLE DATE
---------- ----- ----
/s/ Alan W. Rutherford Managing Director November 26, 1996
- ------------------------------------ (Principal
ALAN W. RUTHERFORD Executive,
Financial and
Accounting
Officer)
/s/ Craig R.L. Calle Director November 26, 1996
- ------------------------------------
CRAIG R.L. CALLE
Crown Cork & Seal Company, Inc. Authorized Representative
in the United States
By: /s/ Alan W. Rutherford November 26, 1996
--------------------------------
Name: Alan W. Rutherford
Title: Executive Vice President
and Chief Financial Officer
II-7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
indicated below certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Paris, Republic of France, on
November 26, 1996.
Crown Cork & Seal Finance S.A.
By: /s/ Bernard Rolley
---------------------------
Name: Bernard Rolley
Title: Chairman and Chief
Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes William J.
Avery, Alan W. Rutherford, Richard L. Krzyzanowski and Craig R.L. Calle, and
each of them, his true and lawful attorneys-in-fact and agents each with full
power of substitution and resubstitution for him and in his name, place and
stead, in any and all capacities to sign any and all necessary documents
including, without limitation, any and all instruments or documents required
to comply with state or foreign securities laws, and any and all amendments
(including pre- or post-effective amendments) to this Registration Statement
on Form S-3 (and any related Registration Statement filed under Rule 462(b)
under the Securities Act of 1933, as amended) and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission or any other applicable authorities,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that each such attorney-in-fact, or his substitute or
substitutes, may do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 26, 1996.
SIGNATURES TITLE DATE
---------- ----- ----
/s/ Bernard Rolley Chairman and Chief November 26,
- ------------------------------------- Executive Officer 1996
BERNARD ROLLEY (Principal
Executive Officer)
/s/ Alan W. Rutherford Chief Financial November 26,
- ------------------------------------- Officer and 1996
ALAN W. RUTHERFORD Director (Principal
Financial and
Accounting Officer)
II-8
<PAGE>
SIGNATURES TITLE DATE
---------- ----- ----
/s/ Peter Collier Director November 26,
- ------------------------------------ 1996
PETER COLLIER
/s/ Timothy J. Donahue Director November 26,
- ------------------------------------ 1996
TIMOTHY J. DONAHUE
Crown Cork & Seal Company, Inc. Authorized Representative
in the United States
November 26,
By: /s/ Alan W. Rutherford 1996
---------------------------------
Name: Alan W. Rutherford
Title: Executive Vice President and
Chief Financial Officer
II-9
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIALLY
NUMBER DESCRIPTION NUMBERED PAGE
------- ----------- -------------
<C> <S> <C>
1.1 Form of Underwriting Agreement.*
4.1 Form of Indenture, including form of Debt Security.
4.2 Form of Bearer Security Depositary Agreement.*
5.1 Opinion of Dechert Price & Rhoads.*
5.2 Opinion of Titmuss Sainer Dechert.*
5.3 Opinion of Jeantet et Associes.*
12.1 Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Arthur Andersen LLP, Claude Chevalier and Salustro Reydel.
23.3 Consent of Befec-Price Waterhouse.
23.4 Consent of Dechert Price & Rhoads (included in Exhibit 5.1).*
23.5 Consent of Titmuss Sainer Dechert (included in Exhibit 5.2).*
23.6 Consent of Jeantet & Associes (included in Exhibit 5.3).*
24.1 Powers of Attorney (included on Signature pages).
25.1 Form T-1 Statement of Eligibility and Qualification of
, as Trustee, under the Trust Indenture Act of 1939, as amended.*
</TABLE>
* To be filed by amendment
<PAGE>
[Draft--11/25/96]
- --------------------------------------------------------------------------------
INDENTURE
Among
CROWN CORK & SEAL COMPANY, INC.
as Issuer and Guarantor
and
CROWN CORK & SEAL FINANCE PLC
as Issuer
(with Guarantee of Crown Cork & Seal Company, Inc.)
and
CROWN CORK & SEAL FINANCE S.A.
as Issuer
(with Guarantee of Crown Cork & Seal Company, Inc.)
and
THE BANK OF NEW YORK
as Trustee
Dated as of , 1996
- --------------------------------------------------------------------------------
<PAGE>
Reconciliation and tie between Trust Indenture Act of 1939 and Indenture, dated
as of
<TABLE>
<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,
(c) ................................................ 6.1(b)
7.3(a)(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
</TABLE>
<PAGE>
3
<TABLE>
<S> <C>
(S) 317(a)(1)............................................... 5.3
(a)(2)............................................... 5.4
(b) ................................................ 10.3
(S) 318(a) ................................................ 1.7
</TABLE>
________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS/1/
Page
----
PARTIES............................................................. 1
RECITALS............................................................ 1
ARTICLE I
Definitions and Other
---------------------
Provisions of General Application
---------------------------------
SECTION 1.01. Definitions......................................... 2
SECTION 1.02. Compliance Certificates and Opinions................ 13
SECTION 1.03. Form of Documents Delivered to Trustee.............. 14
SECTION 1.04. Acts of Holders..................................... 15
SECTION 1.05. Notices, etc., to Trustee and Issuers and the
Guarantor.......................................... 16
SECTION 1.06. Notice to Holders; Waiver........................... 16
SECTION 1.07. Conflict with Trust Indenture Act................... 17
SECTION 1.08. Effect of Headings and Table of Contents............ 17
SECTION 1.09. Successors and Assigns.............................. 17
SECTION 1.10. Severability Clause................................. 18
SECTION 1.11. Benefits of Indentures.............................. 18
SECTION 1.12. Governing Law....................................... 18
SECTION 1.13. Submission to Jurisdiction; Appointment
of Agent for Service of Process..................... 18
SECTION 1.14. Legal Holidays...................................... 19
SECTION 1.15. Certain Matters Relating to Currencies.............. 19
SECTION 1.16. Indenture, Securities and Guarantees Solely
Corporate Obligations.............................. 20
SECTION 1.17. Execution in Counterparts........................... 20
ARTICLE II
Security Forms
--------------
SECTION 2.01. Forms Generally..................................... 20
SECTION 2.02. Form of Face of Security............................ 22
SECTION 2.03. Form of Reverse of Security......................... 25
SECTION 2.04. Form of Notation of Guarantees...................... 30
____________________
/1/Note: This table of contents shall not, for any purpose, be deemed to
be a part of this Indenture.
<PAGE>
Contents, p. 2
Page
----
SECTION 2.05. Form of Trustee's Certificate of Authentication..... 31
ARTICLE III
The Securities
--------------
SECTION 3.01. Amount Unlimited; Issuable in Series................ 31
SECTION 3.02. Denominations....................................... 35
SECTION 3.03. Execution, Authentication, Delivery and Dating...... 35
SECTION 3.04. Temporary Securities................................ 37
SECTION 3.05. Registration, Registration of Transfer and Exchange. 38
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities.... 39
SECTION 3.07. Payment of Interest; Interest Rights Preserved...... 41
SECTION 3.08. Persons Deemed Owners............................... 42
SECTION 3.09. Cancelation......................................... 43
SECTION 3.10. Computation of Interest............................. 43
SECTION 3.11. Global Securities................................... 43
SECTION 3.12. UK Global Securities................................ 46
SECTION 3.13. Payment to be in Proper Currency.................... 50
ARTICLE IV
Satisfaction and Discharge
--------------------------
SECTION 4.01. Satisfaction and Discharge of any Series............ 50
SECTION 4.02. Application of Trust Money.......................... 54
SECTION 4.03. Satisfaction and Discharge of Indenture............. 55
SECTION 4.04. Reinstatement....................................... 55
ARTICLE V
Remedies
--------
SECTION 5.01. Events of Default................................... 56
SECTION 5.02. Acceleration for Maturity; Rescission and Annulment. 58
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement
by Trustee......................................... 59
SECTION 5.04. Trustee May File Proofs of Claim.................... 60
SECTION 5.05. Trustee May Enforce Claims Without Possession of
Securities......................................... 61
SECTION 5.06. Application of Money Collected...................... 62
SECTION 5.07. Limitation on Suits................................. 62
<PAGE>
Page
----
SECTION 5.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest............................... 63
SECTION 5.09. Restoration of Rights and Remedies.................. 63
SECTION 5.10. Rights and Remedies Cumulative...................... 63
SECTION 5.11. Delay or Omission Not Waiver........................ 64
SECTION 5.12. Control by Holders.................................. 64
SECTION 5.13. Waiver of Past Defaults............................. 64
SECTION 5.14. Undertaking for Costs............................... 65
SECTION 5.15. Waiver of Usury, Stay or Extension Laws............. 65
ARTICLE VI
The Trustee
-----------
SECTION 6.01. Certain Duties and Responsibilities................. 66
SECTION 6.02. Notice of Defaults.................................. 67
SECTION 6.03. Certain Rights of Trustee........................... 68
SECTION 6.04. Not Responsible for Recitals or Issuance of
Securities......................................... 69
SECTION 6.05. May Hold Securities................................. 69
SECTION 6.06. Money Held in Trust................................. 69
SECTION 6.07. Compensation and Reimbursement...................... 70
SECTION 6.08. Qualification of Trustee; Conflicting Interests..... 70
SECTION 6.09. Corporate Trustee Required; Eligibility............. 70
SECTION 6.10. Resignation and Removal; Appointment of Successor... 71
SECTION 6.11. Acceptance of Appointment by Successor.............. 73
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
Business........................................... 75
SECTION 6.13. Preferential Collection of Claims Against Issurers
or the Guarantor................................... 75
SECTION 6.14. Appointment of Authenticating Agent................. 75
ARTICLE VII
Holders' Lists and Reports by
-----------------------------
Trustee and Issuers and the Guarantor
-------------------------------------
SECTION 7.01. Issuers and the Guarantor to Furnish Trustee Names
and Addresses of Holders........................... 79
SECTION 7.02. Preservation of Information; Communications to
Holders............................................ 79
SECTION 7.03. Reports by Trustee.................................. 81
SECTION 7.04. Reports by Issuers and the Guarantor................ 81
<PAGE>
Contents, p. 4
Page
----
ARTICLE VIII
Consolidation, Merger, Conveyance,
---------------------------------
Transfer or Lease
-----------------
SECTION 8.01. Company May Consolidate, etc., Only on Certain Terms 81
SECTION 8.02 Subsidiary Issuers May Consolidate, etc., Only on
Certain Terms...................................... 83
SECTION 8.03. Successor Substituted............................... 87
SECTION 8.04. Assumption by Company of Subsidiary Issuers'
Obligations........................................ 87
SECTION 8.05. Indemnification Procedure........................... 88
ARTICLE IX
Supplemental Indentures
-----------------------
SECTION 9.01. Supplemental Indentures without Consent of Holders.. 90
SECTION 9.02. Supplemental Indentures with Consent of Holders..... 92
SECTION 9.03. Execution of Supplemental Indentures................ 93
SECTION 9.04. Effect of Supplemental Indentures................... 93
SECTION 9.05. Conformity with Trust Indenture Act................. 94
SECTION 9.06. Reference in Securities to Supplemental Indentures.. 94
ARTICLE X
Covenants
---------
SECTION 10.01. Payment of Principal, Premium and Interest........ 94
SECTION 10.02. Maintenance of Office or Agency................... 94
SECTION 10.03. Money for Security Payments to be Held in Trust... 96
SECTION 10.04. Corporate Existence............................... 98
SECTION 10.05. Maintenance of Properties......................... 98
SECTION 10.06. Payment of Taxes and Other Claims................. 98
SECTION 10.07. Additional Amounts................................ 99
SECTION 10.08. Limitations on Liens.............................. 101
SECTION 10.09. Limitations on Sale and Leaseback................. 103
SECTION 10.10. Statement by Officers as to Default............... 104
SECTION 10.11. Waiver of Certain Covenants....................... 104
SECTION 10.12. Defeasance of Certain Obligations................. 104
<PAGE>
Contents, p. 5
Page
----
ARTICLE XI
Redemption of Securities
------------------------
SECTION 11.01. Applicability of Article.......................... 106
SECTION 11.02. Election To Redeem; Notice to Trustee............. 107
SECTION 11.03. Selection by Trustee of Securities to be Redeemed. 107
SECTION 11.04. Notice of Redemption.............................. 107
SECTION 11.05. Deposit of Redemption Price....................... 108
SECTION 11.06. Securities Payable on Redemption Date............. 109
SECTION 11.07. Securities Redeemed in Part....................... 109
SECTION 11.08. Optional Redemption Due to Changes in Tax
Treatement....................................... 110
ARTICLE XII
Sinking Funds
-------------
SECTION 12.01. Applicability of Article.......................... 112
SECTION 12.02. Satisfaction of Sinking Fund Payments with
Securities....................................... 112
SECTION 12.03 Redemption of Securities for Sinking Fund......... 113
ARTICLE XIII
Guarantees of Securities
------------------------
SECTION 13.01. Guarantees........................................ 113
SECTION 13.02. Execution of Guarantees........................... 115
<PAGE>
[Draft--11/25/96]
INDENTURE, dated as of December , 1996, among CROWN CORK &
SEAL COMPANY, INC., a Pennsylvania corporation (the "Company"
and, with respect to Securities (as defined herein) issued by
either Subsidiary Issuer (as defined herein), the "Guarantor");
CROWN CORK & SEAL FINANCE S.A., a societe anonyme organized
under the laws of the Republic of France ("Crown France"); CROWN
CORK & SEAL FINANCE PLC, a public limited company organized under
the laws of England and Wales ("Crown UK") (each of Crown France
and Crown UK being a "Subsidiary Issuer" and, collectively the
"Subsidiary Issuers"); and THE BANK OF NEW YORK, as trustee (the
"Trustee"). The Subsidiary Issuers and the Company in its
capacity as an issuer of Securities are herein referred to
individually as an "Issuer" and collectively as the "Issuers".
Each of the Issuers 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.
The Guarantor has duly authorized the execution and delivery of this
Indenture to provide for the Guarantees of the Securities provided for herein.
All things necessary have been done to make this Indenture a valid
agreement of each of the Issuers and the Guarantor, in accordance with its
terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities, it is mutually covenanted and
<PAGE>
2
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 1.01. 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 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;
(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;
(e) references to the "applicable Issuer" are to the Issuer of the
Securities being described; and
(f) references to "Guarantees" and the "Guarantor" are operative only
where a Subsidiary Issuer is, was or may become the Issuer of the relevant
series of Securities, and only with respect to such series of Securities.
"Act", when used with respect to any Holder, has the meaning specified
in Section 1.04.
<PAGE>
3
"Additional Amounts" has the meaning specified in Section 10.07.
"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.
"Agreement Currency" has the meaning specified in Section 1.18.
"Attributable Debt" with respect to any sale leaseback transaction
restricted by Section 10.09 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.
"Authorized Agent" has the meaning specified in Section 1.13.
"Authorized Officer" means any person (whether designated by name or
the persons for the time being holding a designated office) appointed by or
pursuant to a Board Resolution for the purpose, or a particular purpose, of this
Indenture, provided that written notice of such appointment shall have been
given to the Trustee.
"Bearer Security Depositary" means, with respect to any series of
Securities of Crown UK issuable in whole or
<PAGE>
4
in part in the form of one or more UK Global Securities, the book-entry
depositary or its nominee or the custodian of either, designated by Crown UK in
the Bearer Security Depositary Agreement until a successor depositary shall have
become such pursuant to applicable provisions of the Bearer Security Depositary
Agreement, and thereafter "Bearer Security Depositary" shall mean such successor
book-entry depositary or its nominee or the custodian of either, and if at any
time there is more than one such Person, "Bearer Security Depositary" as used
with respect to the Securities of any series shall mean the Bearer Security
Depositary with respect to the Securities of that series.
"Bearer Security Depositary Agreement" means the Note Depositary
Agreement dated as of the date of this Indenture between Crown UK and .
"Beneficial Owner" means, with respect to Global Securities or UK
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", when used with reference to any of the Issuers
or the Guarantor, means the board of directors (or any duly authorized committee
thereof) of such Issuer or the Guarantor, as the case may be.
"Board Resolution", when used with reference to an Issuer or the
Guarantor, means a copy of a resolution certified by the Secretary or an
Assistant Secretary of such Issuer or the Guarantor, as the case may be, to have
been duly adopted by the applicable 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 applicable Issuer or the Guarantor.
<PAGE>
5
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 such Issuer or in any other obligor upon the Securities of any series or in
any affiliate of such Issuer or of such other obligor, and (3) is not connected
with such Issuer or such other obligor or any affiliate of such Issuer 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 such Issuer or the Guarantor. 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.
"Code" shall mean the United States Internal Revenue Code of 1986, as
amended, and regulations, rulings and judicial decisions thereunder as of
, 1996.
"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.
"Consolidated Net Tangible Assets" means the aggregate amount of
assets (less applicable reserves and other properly 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.
<PAGE>
6
"Corporate Trust Office" means the principal office of the Trustee in
The City of New York, in the State of New York at which at any particular time
its corporate trust business shall be administered, which office at the date of
execution of this Indenture is located at .
"Corporation" means a corporation, association, company, joint stock
company or business trust.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Depositary" means, with respect to Securities of any series issuable
in whole or in part in the form of one or more Global Securities or UK Global
Securities, a clearing agency registered as such under the Exchange Act, or any
successor thereto, which shall in either case be designated by the applicable
Issuer pursuant to Section 3.01 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 5.02.
"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 and any
statute successor thereto, in each case, as amended from time to time.
"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
<PAGE>
7
incurred after the date hereof and secured by any mortgage, security interest,
pledge or lien other than those permitted by paragraph (a) of Section 10.08, 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 10.09.
"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 the applicable Issuer executed and authenticated and
delivered to the Depositary or pursuant to the Depositary's instructions, and
which the Guarantor executed, as applicable, the notation of any Guarantees
pursuant to Article XIII or any Guarantees endorsed on, all in accordance with
this Indenture and pursuant to an Issuer 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.
"Guarantee" means the irrevocable and unconditional guarantee by the
Guarantor of any Security of any series of any Subsidiary Issuer authenticated
and
<PAGE>
8
delivered pursuant to this Indenture either (i) if specified in a Board
Resolution of the Guarantor as contemplated by Section 3.01 and endorsed on such
Security or (ii) otherwise applicable pursuant to Article XIII.
"Guarantor" means the Person named as the "Guarantor" 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
"Guarantor" shall mean such successor Person.
"Holder" means, (i) with respect to a series of Securities of Crown UK
issuable in whole or in part in the form of one or more UK Global Securities,
the bearer thereof which shall initially be the Bearer Security Depositary and
(ii) otherwise a Person in whose name a Security is registered in the Security
Register.
"Indemnifiable Transaction" shall have the meaning specified in
Section 8.05.
"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 3.01.
"interest", when used with respect to a Discounted Security which by
its terms bears interest only after Maturity, means interest payable after
Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Issuer" means (i) any of the Persons named as an "Issuer" in the
first paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture in respect of any
such Person, and thereafter "Issuer", in respect of such Person, shall mean such
successor Person and (ii) when used with respect to Securities, shall mean the
Issuer of Securities of the relevant series.
"Issuer Request" or "Issuer Order" means, with respect to Securities
of a series, a written request or order signed in the name of the Issuer or the
Guarantor of
<PAGE>
9
such Securities by any one of such Issuer's or the Guarantor's Chairman of the
Board, President or a Vice President, and by any one of such Issuer's or the
Guarantor's Treasurer, any Assistant Treasurer, Secretary or any Assistant
Secretary, and delivered to the Trustee.
"Judgment Currency" has the meaning specified in Section 1.18.
"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", with respect to an Issuer or the Guarantor,
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
such Issuer or the Guarantor, as the case may be, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for an Issuer or the Guarantor (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 for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the applicable Issuer or the Guarantor) in trust or set aside
and segregated in trust by the applicable Issuer or the Guarantor (if such
Issuer or the Guarantor shall act as its own or their 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;
<PAGE>
10
(c) Securities, except to the extent provided in Section 4.03, as to
which the applicable Issuer or the Guarantor has effected defeasance as
provided in Article IV; and
(d) Securities that have been paid pursuant to Section 3.06 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 such Securities are valid obligations of the applicable
Issuer;
provided, however, that in determining whether the Holders of the requisite
- -------- -------
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder as of any date,
(i) Securities owned by any of the Issuers or the Guarantor or any other obligor
upon the Securities or any Affiliate of any of the Issuers or the Guarantor or
such other obligor 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 an Issuer or the Guarantor or any other obligor upon the Securities or
any Affiliate of an Issuer or the Guarantor or such other obligor; (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 5.02; (iii) if the principal amount of a
Security payable at Maturity is to be determined by reference to an index or
indices, the principal amount of such Security that shall be deemed to be
Outstanding shall be the face amount thereof; (iv) if, as of such date, the
principal amount payable at the Stated Maturity of a Security is not
determinable, the principal amount of such Security which shall be deemed to be
Outstanding shall be the amount as established as contemplated by Section 3.01;
and (v) the principal amount
<PAGE>
11
of a Security denominated in one or more foreign currencies or currency units
which shall be deemed to be Outstanding shall be the equivalent in Dollars,
determined as of such date in the manner established as contemplated by Section
1.15, of the principal amount of such Security (or, in the case of a Security
described in Clause (ii) or (iii) above, of the amount determined as provided in
such Clause).
"Paying Agent" means any Person authorized by any Issuer to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
such Issuer.
"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 3.01.
"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 3.06 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 personnel located therein), other
than any such plant or warehouse or portion thereof that the Board of Directors
of the Company reasonably determines is not of material importance to the
business conducted by the Company and its Subsidiaries as an entirety.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption established 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 established pursuant to
this Indenture.
<PAGE>
12
"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
established as contemplated by Section 3.01.
"Required Currency" has the meaning specified in Section 3.13.
"Responsible Officer", when used with respect to the Trustee, means
any officer of the Trustee assigned by the Trustee to administer its corporate
trust matters.
"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 3.05.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.07.
"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 with respect to the Company 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.
"Subsidiary Assignee" shall have the meaning set forth in Section
8.02.
"Succession Date" has the meaning specified in Section 11.08.
<PAGE>
13
"Successor" shall have the meaning set forth in Section 8.02.
"Successor Additional Amounts" shall have the meaning set forth in
Section 8.02.
"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 9.05; provided, however, that in the event the
-------- -------
Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act"
means, to the extent required by any such amendment, the Trust Indenture Act of
1939 as so amended.
"UK Global Security" means a Security evidencing all or part of a
series of Securities which Crown UK executed and authenticated and delivered to
the Bearer Security Depositary or pursuant to the Bearer Security Depositary's
instructions, and which the Guarantor executed, as applicable, the notation of
any Guarantees pursuant to Article XIII or any Guarantees endorsed on, all in
accordance with this Indenture and pursuant to an Issuer Order, which shall be
in bearer form and represent the amount of uncertificated Securities as
specified therein.
"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 1.02. Compliance Certificates and Opinions. Upon any
-------------------------------------
application or request by an Issuer or the Guarantor to the Trustee to take any
action under any provision of this Indenture, such Issuer or the Guarantor 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
<PAGE>
14
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 10.10) or opinion by or on behalf of an Issuer or the Guarantor 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 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 1.03. 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 an Issuer or the Guarantor
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
<PAGE>
15
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 such Issuer or the
Guarantor stating that the information with respect to such factual matters is
in the possession of such Issuer or the Guarantor, 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 1.04. 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 of Securities of any series 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 applicable Issuer and to the
Guarantor. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the 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 6.01) conclusive in favor of
the Trustee, such Issuer and the Guarantor, 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
<PAGE>
16
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 other than Securities issued as UK
Global Securities shall be proved by the Security Register. The bearer of any
Securities issued as a UK Global Security shall be treated as the owner thereof
for all purposes, subject to the terms of this Indenture.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or Act by the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued upon the 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
applicable Issuer or the Guarantor in reliance thereon, whether or not notation
of such action is made upon such Security.
SECTION 1.05. Notices, etc., to Trustee and Issuers and the
---------------------------------------------
Guarantor. 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 an Issuer or the Guarantor shall
be sufficient for every purpose hereunder if mailed first class, postage
prepaid to, or otherwise made, given, furnished or filed, in writing, to or
with the Trustee at its principal Corporate Trust Office, Attention:
Corporate Trust Administration; or
(b) an Issuer or the Guarantor by the Trustee or by any Holder shall be
sufficient for every purpose (except as provided in Sections 5.01(d), 3.12 and
3.13) hereunder if in writing and mailed, first-class postage prepaid, to such
Issuer or Guarantor addressed to such party at the respective addresses of their
principal offices specified in Annex A to this instrument or at any other
address previously furnished in writing to the Trustee.
<PAGE>
17
SECTION 1.06. Notice to Holders; Waiver. Where this Indenture
--------------------------
provides for notice to Holders of Securities of any series of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid at the expense of the
applicable Issuer, 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 1.07. Conflict with Trust Indenture Act. If any provision
----------------------------------
hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act which is required under such Act to be part of and govern this Indenture,
the latter provision shall control. If any provision of this Indenture modifies
or excludes any provision of the Trust Indenture Act which may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
SECTION 1.08. 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.
<PAGE>
18
SECTION 1.09. Successors and Assigns. All covenants and agreements
-----------------------
in this Indenture by the Issuers or the Guarantor shall bind their respective
successors and assigns, whether so expressed or not.
SECTION 1.10. Severability Clause. In case any provision in this
--------------------
Indenture or in the Securities or the Guarantees shall be invalid, illegal or
unenforceable, 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 or the Guarantees, 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, the Securities and the
--------------
Guarantees shall be governed by and construed in accordance with the laws of the
State of New York, but without regard to the principles of conflicts of law
thereof; provided, however, that all matters governing the authorization and
-------- -------
execution of this Indenture and the Securities by each Subsidiary Issuer will be
governed by and construed in accordance with the laws of the jurisdiction of
organization of such Subsidiary Issuer.
SECTION 1.13. Submission to Jurisdiction; Appointment of Agent for
----------------------------------------------------
Service of Process. Each of the Company and each Subsidiary Issuer hereby
- -------------------
appoints CT Corporation System, 1633 Broadway, New York, New York 10019 as its
authorized agent (the "Authorized Agent") upon which process may be served in
any legal action or proceeding against it with respect to its obligations under
this Indenture or the Securities of any series either as Issuer thereof or
Guarantor, as the case may be, instituted in any Federal or State court in the
Borough of Manhattan, The City of New York by the Trustee or by the Holder of
such Security and each of the Company and each Subsidiary Issuer hereby
irrevocably submits to the non-exclusive jurisdiction of any such court in
respect of any such legal action or proceeding and waives any objection it may
have to the laying of the venue of any such legal action or proceeding. The
Company and the Subsidiary Issuers, jointly, reserve the right to appoint
another Person located or with an office in the Borough of Manhattan, The City
of New York, selected in
<PAGE>
19
their discretion, as a successor Authorized Agent, and upon acceptance of such
appointment by such a successor the appointment of the prior Authorized Agent
shall terminate. If for any reason CT Corporation System ceases to be able to
act as the Authorized Agent or to have an address in the Borough of Manhattan,
The City of New York, the Company and the Subsidiary Issuers, jointly, will
appoint a successor Authorized Agent in accordance with the preceding sentence.
Each of the Company and each of the Subsidiary Issuers further agrees to take
any and all action, including the filing of any and all documents and
instruments, as may be necessary to continue such designation and appointment of
such agent in full force and effect until this Indenture has been satisfied and
discharged in accordance with Article IV or Article X hereof. Service of
process upon the Authorized Agent addressed to it at the address set forth
above, as such address may be changed within the Borough of Manhattan, The City
of New York by notice given by the Authorized Agent to the Trustee, together
with written notice of such service mailed or delivered to the Company or the
applicable Subsidiary Issuer shall be deemed, in every respect, effective
service of process on the Company or such Subsidiary Issuer, as the case may be.
SECTION 1.14. 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) or any Additional Amounts need not be made at such Place of Payment 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 1.15. 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
<PAGE>
20
exchange specified to the Trustee for 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 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 1.16. Indenture, Securities and Guarantees Solely Corporate
-----------------------------------------------------
Obligations. No recourse for the payment of the principal of or premium, if
- ------------
any, or interest or any Additional Amounts on any Security, or for any claim
based thereon, and no recourse under or upon any obligation, covenant or
agreement of any Issuer or the Guarantor in this Indenture or in any
supplemental indenture, or under the Guarantees, 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 any Issuer or the Guarantor or of any successor corporation, either
directly or through any Issuer or the Guarantor 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
Guarantees and the issue of the Securities.
SECTION 1.17. 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 2.01. 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
<PAGE>
21
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 and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary or Bearer Security Depositary therefor 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 applicable Issuer and delivered
to the Trustee at or prior to the delivery of the Issuer Order contemplated by
Section 3.03 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.
If Article XIII is to be applicable to Securities of any series then
the Securities of each such series shall bear a notation of the Guarantees in
substantially the form set forth in Section 2.04. For any other series of
Securities, the Guarantees shall be endorsed on the Securities and shall be
substantially in the form established by or pursuant to a Board Resolution of
the Guarantor in accordance with Section 3.01 or one or more indentures
supplemental hereto. Notwithstanding the foregoing, the notation of the
Guarantees to be endorsed on the Securities of any series may have such
appropriate insertions, omissions, substitutions and other corrections from the
forms thereof referred to above as are required or permitted by this Indenture
and may have such letters, numbers or other marks of identification 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 delivering the same, in each case as evidenced by such delivery.
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
<PAGE>
22
officers executing such Securities, as evidenced by their execution of such
Securities.
SECTION 2.02. 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 or a UK 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
[BEARER SECURITY] DEPOSITARY TO A NOMINEE OF THE [BEARER SECURITY] DEPOSITARY OR
BY A NOMINEE OF THE [BEARER SECURITY] DEPOSITARY TO THE [BEARER SECURITY]
DEPOSITARY OR ANOTHER NOMINEE OF THE [BEARER SECURITY] DEPOSITARY OR BY THE
[BEARER SECURITY] DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR [BEARER
SECURITY] DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR [BEARER SECURITY]
DEPOSITARY.]
No. $
[NAME OF APPLICABLE ISSUER]
______________________
[Title of Security]
[NAME OF APPLICABLE ISSUER], [a corporation duly organized and
existing under the laws of Pennsylvania] [a societe anonyme organized under the
laws of the Republic of France] [a corporation incorporated under the Companies
Act 1985 of Great Britain] (herein called the "Issuer", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to [ or registered assigns] [the
Holder upon surrender hereof], the principal sum of Dollars on
, at the office or agency of the Issuer referred to below,
[If the Security is to bear interest prior to Maturity, insert--, and to pay
---------------------------------------------------------------
interest 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,
--------------
<PAGE>
23
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 Holder hereof] [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 [shall be paid to the Holder hereof on a Special Record Date for
the payment of such Defaulted Interest, notice whereof shall be given to Holders
not less than 10 days prior to such Special Record Date] [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 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.] [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 of the Holder hereof. 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 of the Holder hereof.]
<PAGE>
24
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 Issuer maintained for that purpose in or at such
- ------
other office or agency of the Issuer 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
- -----------------
Issuer 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 Issuer has caused this instrument to be duly
executed under its corporate seal.
[NAME OF APPLICABLE ISSUER],
by
_____________________________
[SEAL]
Attest:
____________________
Authorized Signature
Date:
<PAGE>
25
SECTION 2.03. Form of Reverse of Security. This Security is one of a
---------------------------
duly authorized issue of Securities of the Issuer (herein called the
"Securities"), issued and to be issued in one or more series under an indenture
(herein called the "Indenture") dated as of _______________, 1996, among the
Issuer, [delete Issuer--Crown Cork & Seal Company Inc. (herein the "Guarantor"
which term includes any successor Person under the Indenture referred to
herein), Crown Cork & Seal Finance plc, Crown Cork & Seal Finance SA and
, 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
Issuer, [the Guarantor,] 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 Issuer, 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 Holder hereof on such
date] [the
<PAGE>
26
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 any time [on or
after _______], as a whole or in part, at the election of the Issuer, 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 Redemption Price for
for Redemption through Redemption Otherwise
Operation 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 Holder hereof on such date] [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 Issuer 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 Issuer
<PAGE>
27
(calculated in accordance with generally accepted financial practice) of less
than % per annum.]
[If applicable, insert--[In addition to its ability to redeem this
Security pursuant to the foregoing, this] [This] Security may be redeemed by the
Issuer on the terms set forth, and as more fully described, in the Indenture, in
certain circumstances where the Issuer would be required to pay Additional
Amounts in respect hereof as a result of a change or amendment of any law,
regulation or published tax ruling of the jurisdiction in which the Issuer or
any Successor are organized, or any political subdivision or taxing authority
thereof or therein, affecting taxation, or change in the official
administration, interpretation or application thereof, in each case occurring
after the issue date hereof or which change in such official administration,
interpretation or application shall not have been available to the public prior
to the issue date hereof, which change shall require the Issuer to pay
Additional Amounts.]
[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 Issuer 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.
[If applicable, insert--The Indenture contains provisions for
---------------------
defeasance at any time of the entire indebtedness of the series of which this
Security is a part or certain restrictive covenants and Events of Default with
respect to this Security, in each case upon compliance with certain conditions
set forth in the Indenture.]
[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.]
<PAGE>
28
[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 Issuer's obligations in respect of the payment of the principal of and
interest, if any, on the Securities of this series shall terminate.)
[If applicable, insert--All payments pursuant to this Security shall
be made without withholding or deduction for, or on account of, any present or
future taxes, duties, assessments or governmental charges of whatever nature
imposed or levied by or on behalf of the jurisdiction (the "applicable taxing
jurisdiction") in which the Issuer or any Successors are organized or resident
(or deemed for tax purposes to be resident) or any political subdivision or
taxing authority thereof or therein, unless such taxes, duties, assessments or
governmental charges are required by the applicable taxing jurisdiction or any
such subdivision or authority to be withheld or deducted. In that event, the
Issuer will pay such Additional Amounts (as defined in the Indenture) as will
result (after deduction of such taxes, duties, assessments or governmental
charges and any additional taxes, duties, assessments or governmental charges
and any additional taxes, duties, assessments or governmental charges payable in
respect of such) in the payment to each Holder of a Security of the amounts
which would have been payable in respect of the Security thereof had no such
withholding or deduction been required, subject to certain exceptions as set
forth in Section 10.07 of the Indenture.]
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer [and the Guarantor] and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Issuer [, the
Guarantor] 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
<PAGE>
29
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 Issuer
[and the Guarantor] 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 Issuer, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest [and any Additional Amounts] 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 in the Security
Register, 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 Issuer maintained for such purpose
----------------
in The City of New York or at such other office or agency of the Issuer as may
be maintained for such purpose], duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Issuer 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 transferee.
The Securities of this series are issuable [in bearer form without
coupons] [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.
<PAGE>
30
No service charge shall be made to the Holders for any registration of
transfer or exchange or redemption of Securities, but the Issuer 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 Issuer, [the Guarantor,] the Trustee and any agent
of the Issuer [, the Guarantor,] 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 Issuer, [the Guarantor,] the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security [if applicable, insert--and the
notation of the Guarantees set forth below] which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
SECTION 2.04 Form of Notation of Guarantees. CROWN CORK & SEAL
-------------------------------
COMPANY, INC., a Pennsylvania corporation (the "Guarantor", which term includes
any Successor under the Indenture (the "Indenture") referred to in the Security
on which this notation is endorsed) has unconditionally guaranteed, pursuant to
the terms of the Guarantees contained in Article XIII of the Indenture, the due
and punctual payment of the principal of, any premium, interest and Additional
Amounts on this Security, when and as the same shall become due and payable,
whether at the Stated Maturity, by declaration of acceleration, call for
redemption or otherwise, in accordance with the terms of this Security and the
Indenture.
The obligations of the Guarantor to the Holders of the Securities and
to the Trustee pursuant to the Guarantees and the Indenture are expressly set
forth in Article XIII of the Indenture, and reference is hereby made to such
Article and Indenture for the precise terms of the Guarantees.
The Guarantees shall not be valid or obligatory for any purpose until
the certificate of authentication on the Security upon which this notation of
the Guarantees is endorsed shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized signatories.
<PAGE>
31
SECTION 2.05 Form of Trustee's Certificate of Authentication. This
-----------------------------------------------
is one of the Securities referred to in the within-mentioned Indenture.
, as Trustee,
by
__________________________
Authorized Officer
ARTICLE III
The Securities
--------------
SECTION 3.01 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 Board Resolutions of the applicable Issuer and the
Guarantor, 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 3.04, 3.05, 3.06, 9.06 or 11.07);
(3) the date or dates on which the principal of, and any premium on,
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
<PAGE>
32
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 surrendered for exchange, and notices and demands to
or upon the applicable Issuer and the Guarantor, 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 shall be redeemed, in whole or in part,
either at the option of the applicable Issuer of such Securities or
mandatorily;
(7) the obligation, if any, of the applicable Issuer 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
5.02;
(10) any Events of Default in addition to the Events of Default
described in Section 5.01 and any covenants of the applicable Issuer or the
Guarantor 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;
<PAGE>
33
(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
applicable Issuer 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 currency or currency unit in which the principal of (and premium, if
any) and interest, if any, on such Securities as to which such election is
made shall 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 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 will be entitled to the benefits of the
Guarantees afforded by Article XIII of the Indenture or, if not, the form
of the Guarantees to be endorsed on the Securities;
(15) where appropriate, that the Securities of the series, in whole or
in part, shall not be defeasible pursuant to Article IV or Article X;
(16) if the Securities of the series do not bear interest, the
applicable dates for purposes of Section 7.01;
(17) if the provisions of Section 4.01 relating to the satisfaction
and discharge of Securities of any series shall apply to the Securities of
such series; or
<PAGE>
34
if provisions for the satisfaction and discharge of this Indenture other
than as set forth in Section 4.01 shall apply to the Securities of the
series;
(18) whether the Securities of the series shall be issued in whole or
in part in the form of one or more Global Securities or UK Global
Securities and, in such case, the Depositary or Bearer Security Depositary
for such Global or UK Global Securities, as the case may be; and whether
such Global Securities or UK Global 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;
(19) 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
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture except as permitted by
Section 9.01(e)).
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 Resolutions or supplemental indentures relating thereto.
The terms of such Securities, as set forth above, may be determined by the
applicable Issuer from time to time if so provided in or established pursuant to
the authority granted in Board Resolutions of the applicable Issuer and the
Guarantor. 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.
If any of the terms of the series are established by action taken
pursuant to Board Resolutions or supplemental indentures, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the applicable Issuer or the Guarantor, as the case may
be, and delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
<PAGE>
35
SECTION 3.02. Denominations. The Securities of each series other
--------------
than series of Securities issued as UK Global Securities shall be issuable in
registered form without coupons in such denominations as shall be specified as
contemplated by Section 3.01 which may be in Dollars or in any Foreign Currency.
Each series of Securities issued as UK Global Securities shall be issuable in
bearer form without coupons in such denominations as shall be specified as
contemplated by Section 3.01 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 3.03. Execution, Authentication, Delivery and Dating. The
-----------------------------------------------
Securities shall be executed on behalf of the applicable Issuer and any
Guarantees to be endorsed on the Securities shall be executed on behalf of the
Guarantor by the Chairman of the Board, the President or one of the Vice
Presidents of such Issuer or the Guarantor, as the case may be, under the
corporate seal reproduced thereon attested by the Secretary or one of the
Assistant Secretaries of such Issuer or the Guarantor, as the case may be. The
signature of any of these officers on the Securities and any Guarantees, as the
case may be, may be manual or facsimile. The notation of any Guarantees,
endorsed on the Securities, shall be executed as provided in Section 13.02.
Securities or any Guarantees bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
applicable Issuer or the Guarantor, as the case may be, shall bind such Issuer
or the Guarantor, as the case may be, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or Guarantees or did not hold such offices on the
date of such Securities or Guarantees.
At any time and from time to time after the execution and delivery of
this Indenture, the applicable Issuer may deliver Securities of any series
executed by such Issuer bearing the notation of any Guarantees pursuant to
Article XIII or having any Guarantees endorsed thereon, as applicable, in each
case executed by the Guarantor, to the Trustee for authentication, together with
an Issuer Order for the authentication and delivery of such Securities; and the
Trustee in accordance with such Issuer Order shall authenticate and deliver such
Securities as provided in this
<PAGE>
36
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 or
supplemental indentures as permitted by Sections 2.01 and 3.01, 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 6.01) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities or any Guarantees has been
established by or pursuant to Board Resolutions or indentures supplemental
hereto as permitted by Section 2.01, that such form has been established in
conformity with the provisions of this Indenture;
(b) if the terms of such Securities or any Guarantees have been
established by or pursuant to Board Resolutions or indentures supplemental
hereto as permitted by Section 3.01, that such terms have been established
in conformity with the provisions of this Indenture; and
(c) that such Securities and any Guarantees thereof, when
authenticated and delivered by the Trustee and issued by the applicable
Issuer and the Guarantor in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of such Issuer and the Guarantor, respectively,
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, the Guarantees 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.
<PAGE>
37
No Security or Guarantee 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 or Guarantee has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute delivery of any Guarantees endorsed or noted
thereon on behalf of the Guarantor. The Guarantor by its execution of this
Indenture hereby authorizes the applicable Subsidiary Issuer, in the name and on
behalf of the Guarantor, to confirm the applicable Guarantees to the Holder of
each Security authenticated and delivered hereunder by its execution and
delivery of each such Security, with such Guarantees noted or endorsed thereon,
authenticated and delivered by the Trustee. When delivered pursuant to the
provisions of Section 3.03 hereof, only Guarantees endorsed or noted on the
Securities shall bind the Guarantor notwithstanding the fact that the Guarantees
do not bear the signature of the Guarantor.
SECTION 3.04. Temporary Securities. Pending the preparation of
---------------------
definitive Securities of any series, the applicable Issuer may execute, and the
Guarantor may execute, as applicable, the notation of any Guarantees pursuant to
Article XIII or any Guarantees endorsed on, and upon Issuer 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 or Guarantees or notations of the Guarantees pursuant to Article
XIII, as applicable, may determine, as conclusively evidenced by their execution
of such Securities or Guarantees or notations, as the case may be.
If temporary Securities of any series are issued, the applicable
Issuer will cause definitive Securities of such series to be prepared without
unreasonable delay.
<PAGE>
38
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 such Issuer 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 Issuer shall execute, and the Guarantor
shall execute, as applicable, the notation of any Guarantees pursuant to Article
XIII or the Guarantees endorsed on, 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 3.05. Registration, Registration of Transfer and Exchange.
----------------------------------------------------
Each of the Issuers 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 such Issuer in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, such Issuer 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 of the applicable Issuer in a Place of Payment
for such series, such Issuer shall execute, and the Guarantor shall execute, as
applicable, the notation of any Guarantees pursuant to Article XIII or the
Guarantees endorsed on, 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 and with the notation of any Guarantees pursuant to
Article XIII or any Guarantees endorsed thereon.
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 and with the notation of any Guarantees
pursuant to Article XIII or any Guarantees
<PAGE>
39
endorsed thereon, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
applicable Issuer shall execute, and the Guarantor shall execute, as applicable,
the notation of any Guarantees pursuant to Article XIII or the Guarantees
endorsed on, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities and any Guarantees issued upon any registration of
transfer or exchange of Securities shall be the valid obligations of the
applicable Issuer and the Guarantor, respectively, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange and any Guarantees
thereof.
Every Security presented or surrendered for registration of transfer,
or for exchange or redemption shall (if so required by the applicable Issuer or
the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to such Issuer 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 applicable Issuer 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 3.04, 9.06 or
11.07 not involving any transfer.
The applicable Issuer 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 any
Securities of that same series selected for redemption under Section 11.03 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 3.06. Mutilated, Destroyed, Lost and Stolen Securities. If
-------------------------------------------------
any mutilated Security is surrendered to the Trustee, the applicable Issuer
shall execute and the
<PAGE>
40
Guarantors shall execute, as applicable, the notation of any Guarantees pursuant
to Article XIII or any Guarantees endorsed on, and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same series
and of like tenor and principal amount, having the notation of any Guarantees
pursuant to Article XIII or any Guarantees endorsed thereon, as applicable, and
bearing a number not contemporaneously outstanding.
If (i) the applicable Issuer, the Guarantor and the Trustee receive
evidence to their satisfaction of the destruction, loss or theft of any
Security, and (ii) there is delivered to the applicable Issuer, the Guarantor
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 such Issuer, the
Guarantor and the Trustee that such Security has been acquired by a bona fide
purchaser, such Issuer shall execute, and the Guarantors shall execute, as
applicable, the notation of any Guarantees pursuant to Article XIII or any
Guarantees endorsed on, and upon such Issuer's 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, having the notation of any Guarantees pursuant to
Article XIII or any Guarantees endorsed thereon, as applicable, and 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 applicable Issuer or the
Guarantor, each in its discretion, may, instead of issuing a new Security, pay
any such Security.
Upon the issuance of any new Securities under this Section, the
applicable Issuer or the Guarantor, as the case may be, 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, and any Guarantees thereof,
shall constitute an original additional contractual obligation of the applicable
Issuer and the Guarantor, 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
<PAGE>
41
Indenture equally and proportionately with any and all other Securities and
Guarantees 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 3.07. Payment of Interest; Interest Rights Preserved.
-----------------------------------------------
Interest on any Security of any series other than series of Securities issued as
UK Global Securities 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. Interest on any series
of Securities issued as UK Global Securities which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Holder thereof.
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 in
accordance with the preceding paragraph, and such Defaulted Interest may be paid
by the applicable Issuer or the Guarantor, at its election in each case, as
provided in Clause (a) or (b) below:
(a) The applicable Issuer or the Guarantor may elect to make payment
of any Defaulted Interest to the Holders of the Securities of such series
(or their respective Predecessor Securities) 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. Such Issuer or the Guarantor 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 such Issuer or Guarantor 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
<PAGE>
42
Persons entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify such Issuer and the Guarantor
in writing of such Special Record Date and, in the name and at the expense
of such Issuer or the Guarantor, 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 Persons entitled thereto pursuant to the first sentence of this
Clause (a) and shall no longer be payable pursuant to the following Clause
(b).
(b) The applicable Issuer or the Guarantor 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 such Issuer or the
Guarantor 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 3.08. Persons Deemed Owners. Prior to and at the time of due
----------------------
presentment of a Security for registration of transfer, the applicable Issuer,
the Guarantor, the Trustee and any agent of such Issuer, the Guarantor or the
Trustee may treat the Holder thereof as the owner of such Security for the
purpose of receiving payment of principal of (and premium, if any) and (subject
to
<PAGE>
43
Section 3.07) interest on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither such Issuer, the Guarantor,
the Trustee nor any agent of such Issuer, the Guarantor or the Trustee shall be
affected by notice to the contrary.
SECTION 3.09. Cancelation. 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
canceled by it. Any Issuer or the Guarantor may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which such Issuer or the Guarantor 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 canceled as provided in this Section, except as expressly permitted
by this Indenture. All canceled Securities held by the Trustee may be destroyed
and certification of their destruction delivered to the applicable Issuer and
the Guarantor, unless by an Issuer Order such Issuer directs that canceled
Securities be returned to it.
SECTION 3.10. Computation of Interest. Except as otherwise specified
------------------------
as contemplated by Section 3.01 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 an Issuer shall establish
------------------
pursuant to Section 3.01 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 such Issuer
shall execute, and the Guarantor shall execute, as applicable, the notation of
any Guarantees pursuant to Article XIII or any Guarantees endorsed on, and the
Trustee shall, in accordance with Section 3.03 and the Issuer 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
<PAGE>
44
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
under any Guarantees 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 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, whether
as Holder of a Global Security or the recipient of certificateless depositary
interests in a UK Global Security, notifies the applicable Issuer 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 such Issuer shall not have appointed a successor
Depositary with respect to the Securities of such series, such Issuer will
execute, and the
<PAGE>
45
Guarantor shall execute, as applicable, the notation of any Guarantees pursuant
to Article XIII or any Guarantees endorsed on, and the Trustee, upon receipt of
an Issuer 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 UK Global Security representing such series in
exchange for such Global Security or UK Global Security, having the notation of
any Guarantees pursuant to Article XIII or any Guarantees endorsed thereon. In
addition, 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, any
Beneficial Owner of the Global Security, upon written request given by
registered or certified mail to the applicable Issuer, shall be entitled to
receive definitive Securities in an aggregate principal amount equal to and in
exchange for its respective beneficial interest in the Global Security,
executed, authenticated and delivered as aforesaid.
The applicable Issuer 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, such Issuer will execute, and the Guarantor shall
execute, as applicable, the notation of any Guarantees pursuant to Article XIII
or any Guarantees endorsed on, and the Trustee, upon receipt of an Issuer 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, having the notation of any Guarantees pursuant to
Article XIII or any Guarantees endorsed thereon.
If specified by the applicable Issuer pursuant to Section 3.01 which
respect to Securities of a series, the Depositary for such series of Securities
may surrender a Global Security for such 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 such Issuer and such Depositary. Thereupon, the applicable
Issuer shall execute, and the Guarantor shall execute, as applicable, the
notation of any Guarantees pursuant to Article XIII or any Guarantees
<PAGE>
46
endorsed on, 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, having the
notation of any Guarantees pursuant to Article XIII or any Guarantees
endorsed thereon; 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 the Beneficial Owners thereof, having the notation of any Guarantees
pursuant to Article XIII or any Guarantees endorsed thereon.
Upon the exchange of a Global Security for Securities in definitive
form, such Global Security shall be canceled 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. UK Global Securities. If Crown UK shall establish
---------------------
pursuant to Section 3.01 that the Securities of a series are to be issued in
whole or in part in the form of one or more UK Global Securities, then Crown UK
shall execute, and the Guarantor shall execute, as applicable, the notation of
any Guarantees pursuant to Article XIII or any Guarantees endorsed on, and the
Trustee shall, in accordance with Section 3.03 and the Issuer Order with respect
to such series, authenticate and deliver one or more UK 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 UK Global Securities, (ii) shall
be delivered by the Trustee to the Bearer Security Depositary or pursuant to the
Bearer Security Depositary's instruction and (iii) shall bear a legend
substantially to the following effect: "Unless and
<PAGE>
47
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 Bearer Security
Depositary to a nominee of the Bearer Security Depositary or by a nominee of the
Bearer Security Depositary to the Bearer Security Depositary or another nominee
of the Bearer Security Depositary or by the Bearer Security Depositary or any
such nominee to a successor Bearer Security Depositary or a nominee of such
successor Bearer Security Depositary". Pursuant to the Bearer Security
Depositary Agreement, the Bearer Security Depositary shall issue a
certificateless depositary interest representing an amount equal to the
aggregate principal amount of the UK Global Security or Securities to the
Depositary, which upon its confirmation that the Bearer Security Depositary or a
nominee thereof has custody of the UK Global Security or Securities and
acceptance of such certificateless depositary interest, shall credit accounts of
Persons held with it with the respective principal amounts of the series of
Securities represented by such UK Global Security or Securities. The Trustee
shall deal with the Bearer Security Depositary for purposes of exercising the
rights of the Holders hereunder and under any Guarantees and the rights of the
Beneficial Owners of the UK Global Securities shall be limited to those
established by law and agreements between such Beneficial Owners and the
Depositary and its participants. 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. Dealings between the Bearer Security Depositary and the Depositary
and its participants relating to exercising the rights of the Holders hereunder
and under any Guarantees and the rights of the Beneficial Owners of the UK
Global Securities shall be governed by the Bearer Security Depositary Agreement.
Beneficial Owners shall not be entitled to certificates for UK 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 a UK Global
Security is exchanged in whole or in part for Securities in definitive form,
(i) such UK Global Security representing all or a portion of the Securities of a
series may not be transferred except as a whole by the Bearer Security
Depositary for such series to a nominee of
<PAGE>
48
such Bearer Security Depositary or by a nominee of such Bearer Security
Depositary to such Bearer Security Depositary or another nominee of such Bearer
Security Depositary or by such Bearer Security Depositary or any such nominee to
a successor Bearer Security Depositary for such series or a nominee of such
successor Bearer Security Depositary, and (ii) the certificateless depositary
interest in such UK Global Security held by the Depositary may not be
transferred except as a whole by such Depositary 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
or a nominee of such Successor Depositary.
If at any time the Bearer Security Depositary for the Securities of a
series notifies Crown UK that it is unwilling or unable to continue as Bearer
Security Depositary for the Securities of such series and Crown UK shall not
have appointed a successor Bearer Security Depositary with respect to the
Securities of such series, Crown UK will execute, and the Guarantor shall
execute, as applicable, the notation of any Guarantees pursuant to Article XIII
or any Guarantees endorsed on, and the Trustee, upon receipt of an Issuer 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 UK Global
Security or Securities representing such series in exchange for such UK Global
Security or Securities, having the notation of any Guarantees pursuant to
Article XIII or any Guarantees endorsed thereon. In addition, 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, any Beneficial Owner of
the UK Global Security, upon written request given by registered or certified
mail to Crown UK shall be entitled to receive definitive Securities in an
aggregate principal amount equal to and in exchange for its respective
beneficial interest in the UK Global Security, executed, authenticated and
delivered as aforesaid.
Crown UK may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more UK Global Securities
shall no longer be represented by such UK Global Security or Securities. In
such event, Crown UK will execute, and the
<PAGE>
49
Guarantor shall execute, as applicable, the notation of any Guarantees pursuant
to Article XIII or any Guarantees endorsed on, and the Trustee, upon receipt of
an Issuer 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 UK Global Security or Securities representing such series in
exchange for such UK Global Security or Securities, having the notation of any
Guarantees pursuant to Article XIII or any Guarantees endorsed thereon.
If specified by Crown UK pursuant to Section 3.01 which respect to
Securities of a series, the Bearer Security Depositary for such series of
Securities may surrender a UK Global Security for such 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 Crown UK, the Bearer Security Depositary and the
Depositary. Thereupon, Crown UK shall execute, and the Guarantor shall execute,
as applicable, the notation of any Guarantees pursuant to Article XIII or any
Guarantees endorsed on, and the Trustee shall authenticate and deliver, without
charge,
(i) to each Person specified by the Bearer Security 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 UK Global Security,
having the notation of any Guarantees pursuant to Article XIII or any
Guarantees endorsed thereon; and
(ii) to the Bearer Security Depositary a new UK Global Security in a
denomination equal to the difference, if any, between the principal amount
of the surrendered UK Global Security and the aggregate principal amount of
Securities delivered to the Beneficial Owners thereof, having the notation
of any Guarantees pursuant to Article XIII or any Guarantees endorsed
thereon.
Upon the exchange of a UK Global Security for Securities in definitive
form, such UK Global Security shall be canceled by the Trustee. Securities
issued in exchange for a UK Global Security pursuant to this Section 3.12 shall
be registered in such names and in such authorized denominations as the Bearer
Security Depositary for such
<PAGE>
50
UK Global Security, pursuant to instructions from the Depositary and 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 3.13. 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 applicable
Issuer and the Guarantor to make any payment of the principal, premium or
interest or any Additional Amounts thereon shall not be discharged or satisfied
by any tender by such Issuer or the Guarantor, 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 applicable Issuer and the Guarantor, and such Issuer and the Guarantor 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. Each Issuer and the Guarantor hereby waive any
defense of payment based upon any such tender or recovery which is not in the
Required Currency, or which, when exchanged for the Required Currency by the
Trustee, is less than the full amount of Required Currency then due and payable.
ARTICLE IV
Satisfaction and Discharge
--------------------------
SECTION 4.01. Satisfaction and Discharge of any Series. (a) The
-----------------------------------------
applicable Issuer and the Guarantor 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
<PAGE>
51
one year under arrangements satisfactory to the Trustee for the Securities of
such series, or (iii) with respect to which this Section 4.01 is specified to be
applicable pursuant to Section 3.01, and, so long as no Event of Default shall
be continuing, the Trustee for the Securities of such series, upon Issuer
Request and at the expense of the applicable Issuer or the Guarantor, 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 3.06, (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 such Issuer or the Guarantor and thereafter repaid to such
Issuer or the Guarantor, as the case may be, or discharged from such
trust, as provided in the last paragraph of Section 10.03) 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) such Issuer or the Guarantor 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 3.01 for the Securities of such series), sufficient to
pay and discharge the entire indebtedness on all such Outstanding
Securities of such series and any related coupons for unpaid
principal (and premium, if
<PAGE>
52
any) and interest, if any, to the date of such deposit (in the
case of Securities which have become due and payable) or to the
Stated Maturity or any Redemption Date as contemplated by Section
4.02, as the case may be; or
(ii) such Issuer or the Guarantor 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 date of such deposit (in the case of Securities
which have become due and payable) or to the Stated Maturity or
any Redemption Date as contemplated by Section 4.02, as the case
may be; or
(iii) such Issuer or the Guarantor 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) such Issuer or the Guarantor has paid or caused to be paid all
other sums payable with respect to the Securities of such series and any
related coupons;
(3) such Issuer or the Guarantor 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
<PAGE>
53
(4) the applicable Issuer or the Guarantor, as the case may be, shall
have delivered to the Trustee, not later than the date of such deposit, an
Opinion of Counsel stating that the Holders of the Securities of all series
will not recognize gain or loss for Federal income tax purposes or be
subject to any taxes or recognize gain or loss for income tax purposes in
the jurisdictions in which such Issuer is organized, resident or carries on
a business as a result of such deposit and defeasance and will be subject
to Federal income tax and income taxes, capital and other taxes, including
withholding taxes in such jurisdictions on the same amount and in the same
manner and at the same times as would have been the case if such deposit,
defeasance and discharge had not occurred.
(b) Upon the satisfaction of the conditions set forth in this Section
4.01 with respect to all the Securities of a series, the terms and conditions of
such series, including the terms and conditions with respect thereto set forth
in this Indenture and any Guarantees, shall no longer be binding upon, or
applicable to, the applicable Issuer and the Guarantor, 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
4.01(a)(1)(B); provided, however, that in no event shall the applicable Issuer
-------- -------
and the Guarantor 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 applicable Issuer under applicable law,
(ii) any obligations under Sections 4.02(b), 6.07, 6.10 and 10.12 and (iii) any
obligations under Sections 3.05 and 3.06 (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 applicable Issuer and the Guarantor) and Sections 3.13, 7.01
and 10.02; 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 applicable Issuer or the
Guarantor 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
<PAGE>
54
obligations as it is then holding to the applicable Issuer or the Guarantor, as
the case may be, upon Issuer Request.
SECTION 4.02. Application of Trust Money. (a) All money and
---------------------------
obligations deposited with the Trustee for any series of Securities pursuant to
Section 4.01 and Section 10.12 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 applicable Issuer or the Guarantor 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 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 applicable Issuer or
the Guarantor 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 applicable Issuer or the
Guarantor.
(b) The applicable Issuer or the Guarantor 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 4.01 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 applicable Issuer
and the Guarantor under this Section 4.02(b) shall be deemed to be an obligation
of the applicable Issuer and the Guarantor under Section 6.07(b).
(c) Anything in this Article IV to the contrary notwithstanding, the
Trustee for any series of Securities shall deliver or pay to the applicable
Issuer or the Guarantor, as the case may be, from time to time upon Issuer
Request any money or Government Obligations held by it as provided in Section
4.01 which, as expressed in a Certificate of a Firm of Independent Public
Accountants delivered to such Trustee, are in excess of the amount
<PAGE>
55
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 4.03. Satisfaction and Discharge of Indenture. Upon
----------------------------------------
compliance by the applicable Issuer or the Guarantor with the provisions of
Section 4.01 as to the satisfaction and discharge of each series of Securities
issued hereunder, and if the applicable Issuer or the Guarantor 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 Issuer Request and receipt of an Opinion of Counsel and an Officers'
Certificate complying with the provisions of Section 1.02, the Trustees for all
series of Securities (at the expense of the applicable Issuer or the Guarantor)
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture.
Notwithstanding the satisfaction and discharge of this Indenture, any
obligations of any Issuer or the Guarantor under Sections 3.04, 3.05, 3.06,
4.02(b), 6.07, 6.10, 7.01, 10.02 and 10.12 and the obligations of the Trustee
for any series of Securities under Section 4.02 shall survive.
SECTION 4.04. Reinstatement. If the Trustee for any series of
--------------
Securities is unable to apply any of the amounts (for purposes of this Section
4.04, "Amounts") or Government Obligations, as the case may be, described in
Section 4.01(a)(1)(B)(i) or (ii), respectively, in accordance with the
provisions of Section 4.01 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 applicable Issuer's and the
Guarantor'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 4.01 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
4.01; provided, however, that if, due to the reinstatement of its rights or
-------- -------
obligations hereunder, the applicable Issuer or the Guarantor has made any
payment of principal of (or premium, if any) or interest, if any, on
<PAGE>
56
such Securities or coupons, such Issuer or the Guarantor, as the case may be,
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 5.01. Events of Default. "Event of Default", wherever used
------------------
herein with respect to Securities of any series of an Issuer or any Guarantees
thereof, 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
(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 such Issuer or the Guarantor in this Indenture with respect to
the Securities of that series (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 such Issuer
<PAGE>
57
and the Guarantor by the Trustee or to such Issuer, the Guarantor 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 applicable Issuer or the
Guarantor in an involuntary case or proceeding under any applicable
bankruptcy, insolvency, reorganization or other similar law or (B) a decree
or order adjudging such Issuer or the Guarantor a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of such Issuer or the Guarantor
under any applicable law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of such Issuer or
the Guarantor or of any substantial part of such Issuer's or the
Guarantor's property, or ordering the winding up or liquidation of such
Issuer's or the Guarantor's 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 applicable Issuer or the Guarantor of a
voluntary case or proceeding under any applicable 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 such Issuer or
the Guarantor to the entry of a decree or order for relief in respect of it
in an involuntary case or proceeding under any applicable 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 such Issuer or the Guarantor of a petition or answer or consent seeking
reorganization or relief under any applicable law, or the consent by such
Issuer or the Guarantor to the filing of such petition or the appointment
of or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of it or of any substantial part
of its property, or the making by such Issuer or the Guarantor of an
assignment for the benefit of
<PAGE>
58
creditors, or the admission by such Issuer or the Guarantor in writing of
its inability to pay its debts generally as they become due, or the taking
of corporate action by such Issuer or the Guarantor in furtherance of any
such action; or
(g) any other Event of Default provided with respect to Securities of
that series.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment. If
---------------------------------------------------
an Event of Default with respect to the Securities of any series of any Issuer
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 of such Issuer 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 of such Issuer shall,
declare the principal amount of all the Securities of that series of such Issuer
(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), together
with any accrued interest, to be due and payable immediately, by a notice in
writing to such Issuer and the Guarantor (and to the Trustee if given by the
Holders) and, upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. If an Event of Default
specified in Section 5.01(e) or (f) occurs and is continuing, then the principal
of all the Securities of that series of the applicable Issuer, together with any
accrued interest, 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 applicable
Issuer, the Guarantor and the Trustee, may rescind and annul such declaration
and its consequences if:
(i) such Issuer or the Guarantor has paid or deposited with the
Trustee a sum sufficient to pay:
<PAGE>
59
(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 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 5.03. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee. Each of the Issuers and the Guarantor covenants that if:
- --------
(a) default is made by such Issuer 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 by such Issuer in the payment of principal of (or
premium, if any, on) any Security at the Maturity thereof,
such Issuer or the Guarantor 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
<PAGE>
60
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 such Issuer or the Guarantor 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 against such Issuer or the Guarantor 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 such Issuer or the Guarantor
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 5.04. 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 an Issuer or the Guarantor or any other obligor upon the
Securities or the property of such Issuer or the Guarantor or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal
of such 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 such Issuer or the Guarantor 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 such
Securities and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee
<PAGE>
61
(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 6.07.
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 5.05. Trustee May Enforce Claims Without Possession of
------------------------------------------------
Securities. All rights of action and claims under this Indenture or the
- -----------
Securities or the Guarantees 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 5.06. 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
<PAGE>
62
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
6.07;
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; and
Third: the balance, if any, to the applicable Issuer, to the
Guarantor or to any other Person or Persons entitled thereto.
SECTION 5.07. Limitation on Suits. No Holder of any Securities of
--------------------
any series of an Issuer 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;
(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-
<PAGE>
63
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 5.08. 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 3.07) 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 5.09. 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 applicable Issuer, the Guarantor, 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 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 3.06, 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
<PAGE>
64
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 of an
Issuer 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 any Additional Amounts payable
in respect thereof, or
(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
<PAGE>
65
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 an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any 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 Maturity or Stated Maturity expressed
in such Security.
SECTION 5.15. Waiver of Usury, Stay or Extension Laws. Each of the
----------------------------------------
Issuers and the Guarantor 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 usury, stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and each of the Issuers and the
Guarantor (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.
<PAGE>
66
ARTICLE VI
The Trustee
-----------
SECTION 6.01. 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
<PAGE>
67
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 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 6.02. 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 5.01(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.
<PAGE>
68
SECTION 6.03. Certain Rights of Trustee. Subject to the provisions
--------------------------
of Section 6.01:
(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;
(b) any request or direction of an Issuer or the Guarantor mentioned
herein shall be sufficiently evidenced by an Issuer Request or Issuer Order
and any resolution of the Board of Directors of such Issuer or the
Guarantor 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,
<PAGE>
69
order, bond, debenture, note, other evidence of 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 applicable Issuer and the Guarantor, 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 6.04. 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 Issuers
or the Guarantor, as the case may be, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or the Guarantees. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by any of
the Issuers or the Guarantor of Securities or the proceeds thereof.
SECTION 6.05. May Hold Securities. The Trustee, any Authenticating
--------------------
Agent, any Paying Agent, any Security Registrar or any other agent of the
Trustee, any of the Issuers or the Guarantor, in its individual or any other
capacity, may become the owner or pledgee of Securities, and, subject to
Sections 6.08 and 6.13, may otherwise deal with each of the Issuers and the
Guarantor with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 6.06. 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 applicable
Issuer or the Guarantor, as the case may be.
<PAGE>
70
SECTION 6.07. Compensation and Reimbursement. Each of the Issuers
-------------------------------
and the Guarantor 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 express 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 6.08. 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 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 6.09. Corporate Trustee Required; Eligibility. There shall
----------------------------------------
at all times be a Trustee hereunder with respect to the Securities of each
series of each Issuer, which may be Trustee hereunder for Securities of one or
more series and shall be:
(i) a corporation organized and doing business under the laws of the
United States of America, any
<PAGE>
71
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 of an Issuer by giving written notice thereof to such
Issuer and the Guarantor. If an instrument of acceptance by a 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.
<PAGE>
72
(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 applicable Issuer and the Guarantor.
(d) If at any time:
(1) the Trustee for a series of Securities shall fail to comply
with Section 310(b) of the Trust Indenture Act pursuant to Section
6.08 hereof after written request therefor by the applicable Issuer or
the Guarantor or by any Holder who has been a bona fide Holder of such
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 for a series of Securities shall cease to be
eligible under Section 6.09 and shall fail to resign after written
request therefor by the applicable Issuer or the Guarantor or by any
Holder who has been a bona fide Holder of such Security for at least
six months, or
(3) the Trustee for a series of Securities 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 applicable Issuer or the Guarantor by a Board
Resolution may remove such Trustee with respect to all Securities, or
(ii) subject to Section 5.14, the Holder of any such Security who has been a
bona fide Holder of such 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 with respect to all Securities 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 of an Issuer, such
<PAGE>
73
Issuer and the Guarantor, by Board Resolutions, 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 of an Issuer
shall be appointed by Act of the Holders of a majority in principal amount of
the Outstanding Securities of such series delivered to such Issuer and the
Guarantor and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 6.11, become the successor Trustee with
respect to the Securities of such series of such Issuer and to that extent
supersede the successor Trustee appointed by such Issuer and the Guarantor. If
no successor Trustee with respect to the Securities of any series of any Issuer
shall have been so appointed by such Issuer and the Guarantor 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
of such Issuer.
(f) The applicable Issuer shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series of such
Issuer and each appointment of a successor Trustee with respect to the
Securities of any series of such Issuer 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 each of the Issuers 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,
<PAGE>
74
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
any of the Issuers 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 of one or more
Issuers, the applicable Issuer, the Guarantor, the retiring Trustee and each
successor Trustee with respect to the Securities of one or more series of such
Issuer 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 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
<PAGE>
75
applicable Issuer, the Guarantor 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 applicable Issuer
and the Guarantor 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 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 Issuers or
----------------------------------------------------
the Guarantor. 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
<PAGE>
76
Outstanding the Trustee, with the consent of the applicable Issuer or Issuers
and the Guarantor, may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities of such Issuer or Issuers 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 3.06, 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 applicable Issuer or Issuers 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
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.
<PAGE>
77
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee, to the applicable Issuer or Issuers and to the
Guarantor. The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such Authenticating
Agent, to the applicable Issuer or Issuers and to the Guarantor. 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 each of the applicable Issuers 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 6.07.
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
<PAGE>
78
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
<PAGE>
79
ARTICLE VII
Holders' Lists and Reports by Trustee
--------------------------------------
and Issuers and the Guarantor
-----------------------------
SECTION 7.01. Issuers and the Guarantor to Furnish Trustee Names and
------------------------------------------------------
Addresses of Holders. Each of the Issuers and the Guarantor will furnish or
- ---------------------
cause to be furnished to the Trustee:
(a) semiannually, 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 of Outstanding Securities of each series of
the applicable Issuer 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 applicable Issuer or the Guarantor, as the
case may be, 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 7.02. 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 7.01 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 7.01 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 the Guarantees and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit,
<PAGE>
80
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 7.02(a), or
(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 7.02(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 7.02(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 each of the Issuers, the Guarantor and the Trustee that none of the
Issuers, the
<PAGE>
81
Guarantor 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 7.02(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 7.02(b).
SECTION 7.03. 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 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 applicable Issuer will notify the Trustee when such series of
Securities is listed on any securities exchange.
SECTION 7.04. Reports by Issuers and the Guarantor. Each of the
-------------------------------------
Issuers and the Guarantor 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 8.01. 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, unless:
(1) any Person formed by such consolidation or into which the Company
is merged or to whom the Company has conveyed, transferred or leased its
properties and assets substantially as an entirety is a corporation,
<PAGE>
82
partnership or trust or other entity organized and validly existing under
the laws of the United States of America, any State thereof or the District
of Columbia, and such Person expressly assumes 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 any premium
and interest on all the Securities of the Company and the performance or
observance of every covenant of this Indenture on the part of the Company
to be performed or observed (including the performance or observance of the
Guarantees);
(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 occurred and be continuing;
(3) the Company shall expressly agree by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, (i) to immediately indemnify (pursuant to the indemnification
procedure described in Section 8.05) the Holder of each Security against
(A) any tax, assessment or governmental charge imposed on such Holder or
required to be withheld or deducted from any payment to such Holder
(including any governmental charge or withholding attributable to the
Company's indemnifying such Holder) as a consequence of such consolidation,
merger, conveyance, transfer or lease and (B) any other tax costs or other
tax expenses imposed on such Holder as a result of the act of such
consolidation, merger, conveyance, transfer or lease (except that if the
Company or such Person delivers by the date of any such transaction an
opinion of an independent counsel or a tax consultant of recognized
standing that the Holders will not recognize income, gain or loss for U.S.
federal income tax purposes as a result of such transaction, the Holders
will have such rights to indemnification only if and when gain for U.S.
federal income tax purposes is actually imposed on such Holders) and (ii)
that all payments pursuant to the Securities in respect of the principal of
and any premium and interest on the Securities, as the case may be, shall
be made without withholding or deduction for, or on account of, any present
or future taxes, duties, assessments or governmental charges of whatever
nature
<PAGE>
83
imposed or levied by or on behalf of the jurisdiction of organization of
such Person or any political subdivision or taxing authority thereof or
therein, unless such taxes, duties, assessments or governmental charges are
required by such jurisdiction or any such subdivision or authority to be
withheld or deducted, in which case such Person will pay such additional
amounts of, or in respect of, principal and any premium and interest as
will result (after deduction of such taxes, duties, assessments or
governmental charges and any additional taxes, duties, assessments or
governmental charges payable in respect of such) in the payment to each
Holder of a Security of the amounts which would have been payable pursuant
to the Securities had no such withholding or deduction been required,
subject to the same exceptions as would apply with respect to the payment
by such Subsidiary Issuer of Additional Amounts in respect of the
Securities;
(4) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, any Principal Property of the Company would
become subject to a mortgage, pledge, lien, security interest or other
encumbrance that would not be permitted by this Indenture, such Person
shall take such steps as shall be necessary effectively to secure the
Securities of the Company and of the Subsidiary Issuers equally and ratably
with (or prior to) all indebtedness secured thereby; and
(5) 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 8.02. Subsidiary Issuers May Consolidate, etc., Only on
-------------------------------------------------
Certain Terms. (a) Each Subsidiary Issuer shall not consolidate with or merge
- --------------
into any other Person, or convey, transfer or lease its properties and assets
substantially as any entirety to any Person, unless:
(1) any Person formed by such consolidation or into which the
applicable Subsidiary Issuer is merged or to whom such Subsidiary Issuer
has conveyed,
<PAGE>
84
transferred or leased its properties and assets substantially as an
entirety (a "Successor") is a corporation, partnership or trust or other
entity organized and validly existing under the laws of the jurisdiction of
organization of such Person, and expressly assumes 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 any premium and interest on all the Securities of such Subsidiary
Issuer and the performance or observance of every covenant of this
Indenture on the part of such Subsidiary Issuer to be performed or observed
(including any obligation to pay any Additional Amounts);
(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 occurred and be continuing;
(3) any such Person shall expressly agree, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, (i) to immediately indemnify (pursuant to the
indemnification procedure described in Section 8.05) the Holder of each
Security against (A) any tax, assessment or governmental charge imposed on
such Holder or required to be withheld or deducted from any payment to such
Holder (including any governmental charge or withholding attributable to
such Person's indemnifying such Holder) as a consequence of such
consolidation, merger, conveyance, transfer or lease, and (B) any other tax
costs or other tax expenses of the act of such consolidation, merger,
conveyance, transfer or lease (except that if the Company or any such
Person delivers by the date of any such transaction an opinion of an
independent counsel or a tax consultant of recognized standing that the
Holder will not recognize income, gain or loss for U.S. federal income tax
purposes as a result of such transaction, the Holders will have such rights
to indemnification only if and when gain for U.S. federal income tax
purposes is actually imposed on such Holders) and (ii) that all payments
pursuant to the Securities in respect of the principal of and any premium
and interest on such Securities, as the case
<PAGE>
85
may be, shall be made without withholding or deduction for, or on account
of, any present or future taxes, duties, assessments or governmental
charges of whatever nature imposed or levied by or on behalf of the
jurisdiction of organization of such Person or any political subdivision or
taxing authority thereof or therein, unless such taxes, duties, assessments
or governmental charges are required by such jurisdiction or any such
subdivision or authority to be withheld or deducted, in which case such
Person will pay by way of additional interest such additional amounts of,
or in respect of, principal and any premium and interest ("Successor
Additional Amounts") as will result (after deduction of such taxes, duties,
assessments or governmental charges and any additional taxes, duties,
assessments or governmental charges payable in respect of such) in the
payment to each Holder of a Security of the amounts which would have been
payable pursuant to the Securities had no such withholding or deduction
been required, except that no Successor Additional Amounts shall be so
payable for or on account of:
(A) any tax, duty, levy, assessment or other governmental charge which
would not have been imposed but for the fact that such Holder: (i) was a
resident, domiciliary or national of, or engaged in business or maintained
a permanent establishment or was physically present in, the jurisdiction of
organization of such Successor or any of its territories or any political
subdivision thereof or otherwise had some connection with such jurisdiction
other than the mere ownership of, or receipt of payment under, such
Security; (ii) presented (if presentation is required) such Security for
payment in such jurisdiction or any of its territories or any political
subdivision thereof, unless such Security could not have been presented for
payment elsewhere; or (iii) presented (if presentation is required) such
Security more than thirty (30) days after the date on which the payment in
respect of such Security first became due and payable or provided for,
whichever is later, except to the extent that the Holder would have been
entitled to such Successor Additional Amounts if it had presented such
Security for payment on any day within such period of thirty (30) days;
<PAGE>
86
(B) any estate, inheritance, gift, sale, transfer, personal property
or similar tax, assessment or other governmental charge;
(C) any tax, assessment or other governmental charge which is payable
otherwise than by withholding or deduction from payments of (or in respect
of) principal of or any premium or interest on, such Securities;
(D) any tax, assessment or other governmental charge that is imposed
or withheld by reason of the failure to comply by the Holder or the
beneficial owner of the Security with a request of such Subsidiary Issuer
or the Successor addressed to the Holder (i) to provide information
concerning the nationality, residence or identity of the Holder or such
beneficial owner or (ii) to make any declaration or other similar claim or
satisfy any information or reporting requirement, which, in the case of (i)
or (ii), is required or imposed by statute, treaty, regulation or
administrative practice of the taxing jurisdiction as a precondition or
exemption from all or part of such tax, assessment or other governmental
charge; or
(E) any combination of items (A), (B), (C) and (D);
nor shall Successor Additional Amounts be paid with respect to any payment of
the principal of or any premium or interest on any such Security to any Holder
who is a fiduciary or partnership or other than the sole beneficial owner of
such payment to the extent such payment would be required by the laws of the
jurisdiction of organization of such Person (or any political subdivision or
taxing authority thereof or therein) to be included in the income for tax
purposes of a beneficiary or settlor with respect to such fiduciary or a member
of such partnership or a beneficial owner who would not have been entitled to
such Successor Additional Amounts had it been the Holder of the Security; and
(4) such Subsidiary Issuer 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
<PAGE>
87
this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
(b) A Subsidiary Issuer may assign its obligations under any series
of Securities to any other Subsidiary (the "Subsidiary Assignee") provided that
the conditions set forth in Section 8.02(a) that would apply to the merger of
such Subsidiary Issuer into such Subsidiary Assignee are satisfied, and such
Subsidiary Assignee shall be treated as the Successor to such Subsidiary Issuer
with respect to such series of Securities.
SECTION 8.03. Successor Substituted. Upon (A) any consolidation of
----------------------
an Issuer or the Guarantor with, or merger of an Issuer or the Guarantor into,
any other Person or any conveyance, transfer or lease of the properties and
assets of such Issuer or the Guarantor substantially as an entirety in
accordance with Sections 8.01 or 8.02(a), or (B) any assignment of its
obligations under any series of Securities by a Subsidiary Issuer to any
Subsidiary Assignee in accordance with Section 8.02(b), the successor Person
formed by such consolidation or into which such Issuer or the Guarantor is
merged or to which such conveyance, transfer or lease is made, or the Subsidiary
Assignee, as the case may be, shall succeed to, and be substituted for, and may
exercise every right and power of, such Issuer or the Guarantor or Subsidiary
Issuer under this Indenture with the same effect as if such successor Person had
been named as such Issuer or the Guarantor or Subsidiary Issuer herein, and
thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities or the Guarantees, as the case may be.
SECTION 8.04. Assumption by Company of Subsidiary Issuers'
--------------------------------------------
Obligations. (a) The Company may, at its option, assume the obligations of a
- ------------
Subsidiary Issuer as obligor under any series of Securities and this Indenture;
provided that:
- --------
(i) the Company expressly assumes in an assumption agreement or
supplemental indenture executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal
of and any premium and interest on such Securities and the performance or
observance of every covenant of this Indenture on the part of such
Subsidiary Issuer to be
<PAGE>
88
performed or observed (including any obligation to pay any Additional
Amounts);
(ii) immediately after giving effect to such assumption, no Event of
Default and no event, which after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing; and
(iii) the Company shall expressly agree in an assumption agreement or
supplemental indenture executed and delivered to the Trustee, in form
satisfactory to the Trustee, to immediately indemnify (pursuant to the
indemnification procedure described in Section 8.05) the Holder of each
Security against (i) any tax, assessment or governmental charge imposed on
such Holder or required to be withheld or deducted from any payment to such
Holder (including any governmental charge or withholding tax attributable
to the Company's indemnifying such Holder) as a consequence of such
assumption and (ii) any costs or expenses of such assumption (except that
if the Company delivers to the Trustee an opinion of an independent counsel
or a tax consultant of recognized standing that the Holders will not
recognize income, gain or loss for U.S. federal income tax purposes as a
result of such assumption by the date of such assumption, the Holders will
have indemnification rights pursuant to the indemnification procedure
described in Section 8.05 only if and when gain for U.S. federal income tax
purposes is actually imposed on such Holders); and
(iv) the Company shall have delivered to the Trustee an Officers'
Certificate stating that such assumption and such assumption agreement
comply with this Article and that all conditions precedent herein provided
for relating to such assumption have been complied with.
(b) Upon any assumption pursuant to Section 8.04(a), the Company
shall succeed to, and be substituted for, any may exercise every right and power
of, the applicable Subsidiary Issuer under such Securities and this Indenture
with the same effect as if the Company had been the applicable Subsidiary Issuer
thereof, and such Subsidiary Issuer shall be released from its liability as
obligor upon the Securities and under this Indenture.
<PAGE>
89
SECTION 8.05. Indemnification Procedure. (a) If a transaction
--------------------------
described above under Sections 8.01, 8.02 or 8.04 (an "Indemnifiable
Transaction") should constitute a taxable event for U.S. federal income tax
purposes, the Company or any Person, as the case may be, must indemnify a Holder
of a Security against any tax, assessment or governmental charge imposed on such
Holder or required to be withheld or deducted from any payment to such Holder
(including any governmental charge or withholding attributable to an
indemnification payment made by or on behalf of the Company or any Person) and
any other tax costs or other tax expenses attributable to such Indemnifiable
Transaction, the Company or any such Person, as the case may be, shall comply
with the following indemnification procedures:
(1) Unless the Company or any such Person, as the case may be,
delivers to the Trustee by the date of an Indemnifiable Transaction an
opinion of an independent counsel or a tax consultant of recognized
standing to the effect that such Indemnifiable Transaction will not be a
taxable event for U.S. federal income tax purposes, the Company or any such
Person, as the case may be, shall deliver to each Holder on the date of
such Indemnifiable Transaction (i) notification explaining the U.S. federal
income tax consequences to each such Holder of such Indemnifiable
Transaction and (ii) an indemnification claim form requesting (A)
information concerning each such Holder's tax basis and holding period in a
Security and (B) a statement that the Holder is not then an entity
described in Section 5.01 of the Code that is exempt from U.S. federal
income tax and setting forth the address to which each such Holder must
remit such form.
(2) If the Company or any such Person delivers such an opinion, the
Holders will have indemnification rights pursuant to this Section 8.05 only
if and when gain for U.S. federal income tax purposes is actually imposed
on such Holders.
(3) When the Company or any Person, as the case may be, receives from
a Holder an indemnification claim form, the Company or such Person, as the
case may be, shall within 15 business days remit to such Holder a certified
check in an amount equal to the sum of (i) the product of any gain
recognized as a result of the Indemnifiable Transaction and the highest
marginal tax
<PAGE>
90
rate in effect at the time of such Indemnifiable Transaction (the
"Indemnification Amount"), and (ii) the product of the Indemnification
Amount and such tax rate. For these purposes, gain shall equal the amount
by which the fair market value of a Security at the time of such
Indemnifiable Transaction exceeds such Holder's tax basis in such Security.
ARTICLE IX
Supplemental Indentures
-----------------------
SECTION 9.01. Supplemental Indentures without Consent of Holders.
---------------------------------------------------
Without the consent of any Holders, any Issuer or the Guarantor, when authorized
by a Board Resolution of such Issuer or the Guarantor, as the case may be, 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:
(a) to evidence the succession of another Person to such Issuer or the
Guarantor and the assumption by any such successor of the covenants of such
Issuer or the Guarantor herein and in the Securities or the Guarantees; or
(b) to add to the covenants of such Issuer or the Guarantor 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 such Issuer or the Guarantor; or
(c) 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
(d) 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
<PAGE>
91
(e) 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
(f) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 3.01; or
(g) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 6.11(b); or
(h) 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
(i) 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
(j) 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 4.01; 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
(k) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
<PAGE>
92
Indenture Act, as contemplated by Section 9.05 or otherwise.
SECTION 9.02. 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 applicable
Issuer, the Guarantor and the Trustee, the applicable Issuer and the Guarantor,
when authorized by Board Resolutions of, respectively, the applicable Issuer and
the Guarantor, 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 of Securities of such series
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 principal of or 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 change any obligation of such Issuer or the
Guarantor to pay any Additional Amounts or reduce the amount of the
principal of a Discounted Security or any other Security that would be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.02, 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 Maturity thereof; or
(b) reduce the percentage in principal amount of the Outstanding
Securities of any series of such Issuer, 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
(c) modify any of the provisions of this Section or Sections 5.13 and
10.11, except to increase
<PAGE>
93
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 10.11, or the deletion of this proviso,
in accordance with the requirements of Sections 6.11(b) and 9.01(h).
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 applicable Issuer and the Guarantor, each
accompanied by copies of Board Resolutions of, respectively, the applicable
Issuer and the Guarantor 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 such Issuer and the Guarantor
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 9.03. 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
6.01) 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.
<PAGE>
94
SECTION 9.04. 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
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
SECTION 9.05. 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 9.06. 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 applicable Issuer and the
Guarantor shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and such Issuer and the Guarantor, to any
such supplemental indenture may be prepared and executed by such Issuer, the
notation of the Guarantor or the Guarantees endorsed thereon may be prepared and
executed by the Guarantor and such Securities may be and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
Covenants
---------
SECTION 10.01. Payment of Principal, Premium and Interest. Each of
-------------------------------------------
the Issuers covenants and agrees for the benefit of the Holders of each series
of Securities of such Issuer that it will duly and punctually pay the principal
of (and premium, if any) and interest on the Securities of that series in
accordance with the terms of the Securities and this Indenture.
SECTION 10.02. Maintenance of Office or Agency. Each of the Issuers
--------------------------------
will maintain in each Place of Payment for any series of Securities of such
Issuer, 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
<PAGE>
95
where notices and demands to or upon such Issuer 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 each of the Issuers, except to the extent that any of the
Issuers shall designate and maintain some other office or agency for one or more
of such purposes. Each applicable Issuer will give prompt written notice to the
Trustee of the location, and any change in the location, of any such office or
agency. If at any time an Issuer shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office, and each of the Issuers hereby appoints the Trustee as
its agent to receive all such presentations, surrenders, notices and demands.
Each of the Issuers may from time to time designate one or more other
offices or agencies where the Securities of one or more series of such Issuer
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 such Issuer of its obligation to maintain
an office or agency in each Place of Payment for Securities of any series for
such purposes. Each applicable Issuer 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.
The Guarantor will maintain in each Place of Payment for any series of
Securities to which the Guarantees apply an office or agency where Securities of
such series may be presented or surrendered for payment pursuant to the
Guarantees and where notices and demands to or upon the Guarantor in respect of
the Guarantees and this Indenture may be served. The Guarantor will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Guarantor shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders and demands may be made or
served at the Corporate Trust Office of the Trustee, and the Guarantor hereby
appoints the Trustee as its agent to receive all such presentations, surrender
and demands.
<PAGE>
96
The Guarantor may also from time to time designate one or more other
offices or agencies where the Securities of one or more series to which the
Guarantees apply may be presented or surrendered for such purpose or where such
notices or demands may be served and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
-------- -------
any manner relieve the Guarantor of its obligation to maintain an office or
agency in each Place of Payment for Securities of any series for such purposes.
The Guarantor will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION 10.03. Money for Security Payments to be Held in Trust. If
------------------------------------------------
any of the Issuers or the Guarantor shall at any time act as its own Paying
Agent with respect to any series of Securities, 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 of that series, segregate and hold in trust
for the benefit of the Persons 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 any of the Issuers shall have one or more Paying Agents for any
series of Securities, it will, on or before each due date of the principal of
(and premium, if any), or interest on, any Securities of that series, 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 applicable Issuer will promptly
notify the Trustee of such action or any failure so to act.
The applicable Issuer 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
<PAGE>
97
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 applicable Issuer
(or any other obligor upon the Securities) in the 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.
Any of the Issuers may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Issuer Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the applicable Issuer 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 such
Issuer 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 any of the Issuers or the Guarantor, in trust for the payment of the
principal of (and premium, if any) or interest or Additional Amounts on any
Security and remaining unclaimed for three years after such principal (and
premium, if any) or interest or Additional Amounts has become due and payable
shall be paid to the applicable Issuer or the Guarantor on Issuer Request, or
(if then held by such Issuer or the Guarantor) shall be discharged from such
trust; and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the applicable Issuer or the Guarantor for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of such Issuer or the Guarantor 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 applicable Issuer or the Guarantor cause to be published once, in
a newspaper published in the
<PAGE>
98
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 such Issuer or the Guarantor.
SECTION 10.04. Corporate Existence. Subject to Article VIII, each of
--------------------
the Issuers and the Guarantor shall do or cause to be done all things necessary
to preserve and keep in full force and effect its corporate existence, rights
(charter and statutory) and franchises (including those of each Subsidiary);
provided, however, that each of the Issuers and the Guarantor shall not be
- -------- -------
required to preserve any such right or franchise if its respective Board of
Directors shall determine in a Board Resolution that the preservation thereof is
no longer desirable in the conduct of the business of the applicable Issuer or
the Guarantor 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 any
Issuer or any Subsidiary in compliance with the terms of this Indenture.
SECTION 10.05. Maintenance of Properties. Each of the Issuers and
--------------------------
the Guarantor shall cause all properties owned by it or any of its Subsidiaries
or used or held for use in the conduct of its business or the business of any of
its Subsidiaries 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 such Issuer or the Guarantor 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 any Issuer or the Guarantor from discontinuing the
maintenance of any of such properties if such discontinuance is, in the judgment
of such Issuer or the Guarantor, desirable in the conduct of its business or the
business of any of its Subsidiaries and not disadvantageous in any material
respect to the Holders of any of the Securities of such Issuer.
SECTION 10.06. Payment of Taxes and Other Claims. Each of the
----------------------------------
Issuers and the Guarantor will pay or discharge
<PAGE>
99
or cause to be paid or discharged, before the same shall become delinquent, (a)
all taxes, assessments and governmental charges levied or imposed upon the
applicable Issuer or the Guarantor or any Subsidiary thereof or upon the income,
profits or property of such Issuer or the Guarantor or any Subsidiary thereof,
and (b) all lawful claims for labor, materials and supplies which, if unpaid,
might by law become a lien upon the property of such Issuer or the Guarantor or
any Subsidiary thereof; provided, however, that any such Issuer and the
-------- -------
Guarantor 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 10.07. Additional Amounts. All payments of, or in respect
-------------------
of, principal of and any premium and interest on Securities issued by a
Subsidiary Issuer shall be made without withholding or deduction for, or on
account of, any present or future taxes, duties, levies, assessments or
governmental charges of whatever nature imposed or levied by or on behalf of the
jurisdiction (or any political subdivision or taxing authority thereof or
therein) in which the Subsidiary Issuer is incorporated or resident (or deemed
for tax purposes to be resident) (the "applicable taxing jurisdiction"), unless
such taxes, duties, levies, assessments or governmental charges are required by
the applicable taxing jurisdiction or any such subdivision or authority to be
withheld or deducted. In that event, the Subsidiary Issuer will pay by way of
additional interest such additional amounts of, or in respect of, principal and
any premium and interest ("Additional Amounts") as will result (after deduction
of such taxes, duties, levies, assessments or governmental charges and any
additional taxes, duties, levies, assessments or governmental charges payable in
respect of such Additional Amounts) in the payment to each Holder of such
Securities of the amounts which would have been payable in respect of such
Securities had no such withholding or deduction been required, except that no
Additional Amounts shall be so payable for or on account of:
(1) any tax, duty, levy, assessment or other governmental charge which
would not have been imposed but for the fact that such Holder: (A) was a
resident, domiciliary or national of, or engaged in business or maintained
a permanent establishment or was physically present in, the applicable
taxing jurisdiction or
<PAGE>
100
otherwise had some connection with the applicable taxing jurisdiction other
than the mere ownership of such Security; (B) presented (if presentation is
required) such Security for payment in the applicable taxing jurisdiction,
unless such Security could not have been presented for payment elsewhere;
or (C) presented (if presentation is required) such Security more than
thirty (30) days after the date on which the payment in respect of such
Security first became due and payable or provided for, whichever is later,
except to the extent that the Holder would have been entitled to such
Additional Amounts if it had presented such Security for payment on any day
within such period of thirty (30) days;
(2) any estate, inheritance, gift, sale, transfer, personal property
or similar tax, assessment or other governmental charge;
(3) any tax, assessment or other governmental charge which is payable
otherwise than by withholding or deduction from payments of, or in respect
of, principal of or any premium or interest on the Security;
(4) any tax, assessment or other governmental charge that is imposed
or withheld by reason of the failure to comply by the Holder or the
beneficial owner of a Security with a request of the applicable Subsidiary
Issuer addressed to the Holder (A) to provide information concerning the
nationality, residence or identity of the Holder or such beneficial owner
or (B) to make any declaration or other similar claim or satisfy any
information or reporting requirement, which, in the case of (A) or (B), is
required or imposed by a statute, treaty, regulation or administrative
practice of the applicable taxing jurisdiction as a precondition to
exemption from all or part of such tax, assessment or other governmental
charge; or
(5) any combination of items (1), (2), (3) and (4);
nor shall Additional Amounts be paid with respect to any payment of the
principal of or any premium or interest on any such Security to any Holder who
is a fiduciary or partnership or other than the sole beneficial owner of such
<PAGE>
101
payment to the extent such payment would be required by the laws of the
applicable taxing jurisdiction to be included in the income for tax purposes of
a beneficiary or settlor with respect to such fiduciary or a member of such
partnership or a beneficial owner who would not have been entitled to such
Additional Amounts had it been the Holder of the Security.
Whenever in this Indenture there is mentioned, in any context, the
payment of principal of, or any premium or interest on, or in respect of, any
Securities of any series issued by a Subsidiary Issuer or the net proceeds
received on the sale or exchange of any Securities of any series issued by a
Subsidiary Issuer, such mention shall be deemed to include mention of the
payment of Additional Amounts provided for in this Section to the extent that,
in such context, Additional Amounts are, were or would be payable in respect
thereof pursuant to this Indenture.
SECTION 10.08. 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 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:
(i) Liens that exist on the date of this Indenture;
(ii) Liens on property, shares of capital stock or evidences of
indebtedness of any corporation existing at the time such corporation
becomes a Subsidiary;
(iii) Liens in favor of the Company or any Subsidiary;
(iv) Liens in favor of governmental bodies to secure progress,
advance or other payments pursuant to contract or statute or indebtedness
incurred to finance
<PAGE>
102
all or a part of construction of or improvements to property subject to
such Liens;
(v) Liens (A) 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 (B) 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);
(vi) mechanics', landlords' and similar Liens arising in the
ordinary course of business in respect of obligations not due or being
contested in good faith;
(vii) Liens for taxes, assessments, or governmental charges or levies
that are not delinquent or are being contested in good faith;
(viii) Liens arising from any legal proceedings that are being
contested in good faith;
(ix) any Liens that (A) 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 governmental insurance or benefits, or to secure
performance of tenders, statutory obligations, leases and contracts, (B)
were not incurred in connection with the borrowing of money or the
obtaining of advances or credit and (C) 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;
<PAGE>
103
(x) Liens securing industrial development or pollution control bonds;
and
(xi) 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
10.08, the Company or any Restricted Subsidiary may, without equally and ratably
securing the Securities, create, assume or suffer to exist Liens which would
otherwise be subject to the foregoing restrictions if at the time of such
creation, assumption or sufferance of existence, and after giving effect
thereto, Exempted Indebtedness does not exceed 10% of Consolidated Net Tangible
Assets.
SECTION 10.09. 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
10.08 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
10.09, the Company or any
<PAGE>
104
Restricted Subsidiary may 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 10.10. 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, a certificate signed by its principal
executive officer, principal financial officer or principal accounting officer,
stating whether or not to the best knowledge of the signers thereof the Company
or any of the Subsidiary Issuers is in default in the performance and observance
of any of the terms, provisions and conditions of Sections 10.01 to 10.09,
inclusive, and if the Company or any of the Subsidiary Issuers shall be in
default, specifying all such defaults and the nature and status thereof of which
they may have knowledge.
SECTION 10.11. Waiver of Certain Covenants. Any Issuer and the
----------------------------
Guarantor may, with respect to the Securities of a series of such Issuer, omit
in any particular instance to comply with any covenant or condition set forth in
Sections 10.02 through 10.09 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 of such series 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 such Issuer and the Guarantor
and the duties of the Trustee in respect of any such covenant or condition shall
remain in full force and effect.
SECTION 10.12. Defeasance of Certain Obligations. If specified
----------------------------------
pursuant to Section 3.01 to be applicable to the Securities of any series, the
Issuer thereof may omit to comply with any term, provision or condition set
forth in Sections 8.01, 8.02, 10.08 and 10.09 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:
(a) with respect to all Outstanding Securities of such series and any
coupons appertaining thereto not
<PAGE>
105
theretofore delivered to the Trustee for cancellation, the applicable
Issuer or the Guarantor 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 3.01 for the Securities of such series);
(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;
(b) 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 applicable Issuer or the Guarantor is a party or by
which it is bound;
(c) 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 5.01(e) or
Section 5.01(f) or event which with the giving of notice or lapse of time,
or both, would become an Event of Default under Section 5.01(e) or Section
5.01(f) shall have occurred and be continuing on the 91st day after such
date;
(d) the applicable Issuer or the Guarantor has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel each stating
that all conditions
<PAGE>
106
precedent herein provided for relating to the defeasance contemplated in
the Section have been complied with; and
(e) the applicable Issuer or the Guarantor, as the case may be, shall
have delivered to the Trustee, not later than the date of such deposit, an
Opinion of Counsel stating that the Holders of the Securities of such
series will not recognize gain or loss for Federal income tax purposes or
be subject to any taxes or recognize gain or loss for income tax purposes
in the jurisdictions in which such Issuer is organized, resident or carries
on a business as a result of such deposit and defeasance and will be
subject to Federal income tax and income taxes, capital and other taxes,
including withholding taxes in such jurisdiction 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 applicable Issuer and the Guarantor under this
Indenture with respect to the Securities of such series, other than with respect
to Sections 8.01, 8.02, 10.08 and 10.09, shall remain in full force and effect.
Anything in this Section 10.12 to the contrary notwithstanding, the Trustee for
any series of Securities shall deliver or pay to the applicable Issuer or the
Guarantor, from time to time upon Issuer Request, any money or Government
Obligations held by it as provided in this Section 10.12 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 11.01. 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 3.01 for Securities of any series) in accordance with this Article.
<PAGE>
107
SECTION 11.02. Election to Redeem; Notice to Trustee. The election
--------------------------------------
of an Issuer to redeem any Securities of any series of such Issuer pursuant to
Section 11.01 shall be evidenced by a Board Resolution of such Issuer and an
Officers' Certificate. In case of any redemption at the election of an Issuer,
such Issuer shall, at least 60 days prior to the Redemption Date fixed by such
Issuer (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 of the series to be redeemed.
SECTION 11.03. 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 of such series 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.
The Trustee shall promptly notify the applicable Issuer 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 11.04. 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;
<PAGE>
108
(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 applicable Issuer 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.
Notice of redemption of Securities to be redeemed at the election of
any of the Issuers shall be given by the applicable Issuer or, at such Issuer's
request, by the Trustee in the name and at the expense of such Issuer.
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 11.05. Deposit of Redemption Price. On or prior to any
----------------------------
Redemption Date the applicable Issuer shall deposit with the Trustee or with a
Paying Agent (or, if such Issuer is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 10.03) an amount of money in
<PAGE>
109
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 11.06. 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 applicable Issuer
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 applicable Issuer 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 at the close of business on the relevant Regular Record Dates according to
the terms and provisions of Section 3.07.
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 11.07. Securities Redeemed in Part. Any Security which is to
----------------------------
be redeemed only in part shall be surrendered at the office or agency of the
applicable Issuer maintained for such purpose pursuant to Section 10.02 (with,
if the applicable Issuer, the Security Registrar or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to such
Issuer, the Security Registrar or the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the applicable Issuer
shall execute, the Guarantor shall execute the notation of the Guarantees
pursuant to Article XIII or the Guarantees endorsed on, 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 or the
-------- -------
Bearer Security Depositary need not surrender Global Securities or
<PAGE>
110
UK Global Securities, as the case may be, for a partial redemption and may be
authorized to make a notation on such Global Security or UK 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.
SECTION 11.08. Optional Redemption Due to Changes in Tax Treatment.
----------------------------------------------------
If as the result of any change in or any amendment to the laws, regulations or
published tax rulings of the applicable taxing jurisdiction affecting taxation,
or any change in the official administration, application or interpretation of
such laws, regulations or published tax rulings either generally or in relation
to any Securities issued by a Subsidiary Issuer, which change or amendment
becomes effective on or after the original issue date of such Securities or
which change in official administration, application or interpretation shall not
have been available to the public prior to such issue date, it is determined by
the applicable Subsidiary Issuer that such Subsidiary Issuer (x) would be
required to pay any Additional Amounts pursuant to Section 10.07 of this
Indenture or the terms of any Security (1) in respect of interest on the next
succeeding Interest Payment Date or (2) in respect of the principal of any
Discounted Securities on the date of such determination, assuming that a payment
in respect of such principal were required to be made on such date under the
terms of the Securities, and (y) such obligation cannot be avoided by the
Company or such Subsidiary Issuer taking reasonable measures available to it, in
either case (1) or (2) above such Subsidiary Issuer may, at its option, redeem
all (but not less than all) the Securities of any series in respect of which
such Additional Amounts would be so payable at any time, upon notice as provided
in Sections 11.02 and 11.04, at a Redemption Price equal to 100% of the
principal amount thereof plus accrued interest to the date fixed for redemption
(except that any such Securities that are Outstanding Discounted Securities may
be redeemed at the Redemption Price specified in the terms thereof); provided,
--------
however, that (a) no such notice of redemption may be given earlier than 60 days
- -------
prior to the earliest date on which the applicable Subsidiary Issuer would be
obligated to pay such Additional Amounts were a payment in respect of the
Securities then due, and (b) at the time any such redemption notice is given,
such obligation to pay such Additional Amounts must remain in effect. If (1)
the applicable
<PAGE>
111
Subsidiary Issuer shall have on any date (the "Succession Date") consolidated
with or merged into, or conveyed or transferred or leased its properties and
assets substantially as an entirety to, any Successor referred to in Section
8.02 which is organized under the laws of any jurisdiction other than the United
States of America, any State thereof or the District of Columbia or the
jurisdiction in which such Subsidiary Issuer is organized, (2) as the result of
any change in or any amendment to the laws, regulations or published tax rulings
of such jurisdiction of organization, or of any political subdivision or taxing
authority thereof or therein, affecting taxation, or any change in the official
administration, application or interpretation of such laws, regulations or
published tax rulings either generally or in relation to any particular
Securities, which change or amendment becomes effective on or after the
Succession Date or which change in official administration, application or
interpretation shall not have been available to the public prior to such
Succession Date and is notified to the Subsidiary Issuer of such series of
Securities, such Successor would be required to pay any Successor Additional
Amounts pursuant to Section 8.02 hereof or the terms of any Securities (i) in
respect of interest on any Securities on the next succeeding Interest Payment
Date, or (ii) in respect of the principal of any Discounted Securities on the
date of such determination (assuming such principal were required to be paid on
such date under the terms of the Securities) and (3) such obligation cannot be
avoided by the Company or such Successor taking reasonable measures available to
it, such Subsidiary Issuer or such Successor may, at its option, redeem all (but
not less than all) of the Securities of any series in respect of which such
Successor Additional Amounts would be so payable at any time, upon notice as
provided in Sections 11.02 and 11.04, at a Redemption Price equal to 100% of the
principal amount thereof plus accrued interest to the date fixed for redemption
(except that any such Securities that are Outstanding Discounted Securities may
be redeemed at the Redemption Price specified in the terms thereof); provided,
--------
however, that (1) no such notice of redemption may be given earlier than 60 days
- -------
prior to the earliest date on which a Successor would be obligated to pay such
Successor Additional Amounts were a payment in respect of the Securities then
due, and (2) at the time any such redemption notice is given, such obligation to
pay such Successor Additional Amounts must remain in effect.
<PAGE>
112
Prior to any redemption of any Securities pursuant to this Section,
the applicable Subsidiary Issuer or a Successor shall provide the Trustee with
an Opinion of Counsel that the conditions precedent to the right of such
Subsidiary Issuer or Successor to redeem such Securities pursuant to this
Section have occurred. Such Opinion of Counsel shall be based on the laws and
application and interpretation thereof in effect on the date of such opinion or
to become effective on or before the next succeeding Interest Payment Date.
ARTICLE XII
Sinking Funds
-------------
SECTION 12.01. 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 3.01 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 12.02. 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 12.02. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
Any Issuer (a) may deliver Outstanding Securities of a series (other than any
previously called for redemption) and (b) may apply as a credit Securities of a
series which have been redeemed either at the election of such Issuer 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 provided for by the terms of such series; provided that such
--------
Securities have not been previously so credited. Such
<PAGE>
113
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 12.03. Redemption of Securities for Sinking Fund. Not less
------------------------------------------
than 90 days prior to each sinking fund payment date for any series of
Securities, the applicable Issuer 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 12.02, 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 11.03 and
cause notice of the redemption thereof to be given in the name of and at the
expense of such Issuer in the manner provided in Section 11.04. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 11.06 and 11.07.
ARTICLE XIII
Guarantees of Securities
------------------------
SECTION 13.01. Guarantees. This Section 13.01 and Section 13.02
-----------
apply to the Securities of any series of any Subsidiary Issuer to the extent
that the form of the Guarantees to be endorsed on such Securities is not
otherwise established as contemplated by Section 3.01.
The Guarantor hereby fully and unconditionally guarantees to each
Holder of a Security of each series issued by a Subsidiary Issuer, authenticated
and delivered by the Trustee the due and punctual payment of the principal
(including any amount due in respect of original issue discount) of and any
premium and interest on such Security (and any Additional Amounts (as defined in
Section 10.07) payable in respect thereof), and the due and punctual payment of
any sinking fund payments provided for pursuant to the terms of such Security,
when and as the same shall become due and payable, whether at the Stated
Maturity, by
<PAGE>
114
declaration of acceleration, call for redemption or otherwise, in accordance
with the terms of such Security and of this Indenture. The Guarantor hereby
agrees that in the event of an Event of Default its obligations hereunder shall
be as if it were a principal debtor and not merely a surety, and shall be
absolute and unconditional, irrespective of, and shall be unaffected by, any
invalidity, irregularity or unenforceability of any Security of any series or
this Indenture, any failure to enforce the provisions of any Security of any
series or this Indenture, any waiver, modification or indulgence granted to the
applicable Subsidiary Issuer with respect thereto, by the Holder of any Security
of any series of such Subsidiary Issuer or the Trustee, or any other
circumstances which may otherwise constitute a legal or equitable discharge of a
surety or guarantor; provided, however, that, notwithstanding the foregoing, no
-------- -------
such waiver, modification or indulgence shall, without the consent of the
Guarantor, increase the principal amount of any Security of a Subsidiary Issuer
or the interest rate thereon or increase any premium payable upon redemption
thereof. The Guarantor hereby waives diligence, presentment, demand of payment,
filing of claims with a court in the event of merger or bankruptcy of the
applicable Subsidiary Issuer, any right to require a proceeding first against
such Subsidiary Issuer, the benefit of discussion, protest or notice with
respect to any Security of such Subsidiary Issuer or the indebtedness evidenced
thereby or with respect to any sinking fund payment required pursuant to the
terms of such Security issued under this Indenture and all demands whatsoever,
and covenants that this Guarantee will not be discharged with respect to such
Security except by payment in full of the principal thereof and any premium and
interest thereon or as provided in Article IV, Section 8.01 or Section 10.12.
If any Holder or the Trustee is required by any court or otherwise to return to
any Subsidiary Issuer, the Guarantor, or any custodian, trustee, liquidator or
other similar official acting in relation to such Issuer or the Guarantor any
amount paid by such Issuer or the Guarantor to the Trustee or such Holder, this
Guarantee to the extent theretofore discharged, shall be reinstated in full
force and effect. The Guarantor further agrees that, as between the Guarantor,
on the one hand, and the Holders and the Trustee, on the other hand, the
Maturity of the obligations guaranteed hereby may be accelerated as provided in
Article V hereof for the purposes of this Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby.
<PAGE>
115
The Guarantor also agrees, to pay any and all reasonable costs and
expenses (including reasonable attorneys' fees and expenses) incurred by the
Trustee or any Holders in enforcing any rights under this Guarantee.
The Guarantor hereby waives any right of set-off which the Guarantor
may have against the Holder of any Security of a Subsidiary Issuer in respect of
any amounts which are or may become payable by such Holder to such Subsidiary
Issuer.
The Guarantor shall be subrogated to all rights of the Holders of any
series of Securities and the Trustee against the applicable Subsidiary Issuer in
respect of any amounts paid to such Holders and the Trustee by the Guarantor
pursuant to the provisions of the Guarantees; provided, however, that the
-------- -------
Guarantor shall not be entitled to enforce or to receive any payments arising
out of or based upon, such right of subrogation until the principal of, premium,
if any, and interest and any Additional Amounts on all of the Securities of such
series shall have been paid in full.
No past, present or future stockholder, officer, director, employee or
incorporator of the Guarantor shall have any personal liability under the
Guarantees set forth in this Section 13.01 by reason of his or its status as
such stockholder, officer, director, employee or incorporator.
The Guarantees set forth in this Section 13.01 shall not be valid or
become obligatory for any purpose with respect to a Security until the
certificate of authentication on such Security shall have been signed by or on
behalf of the Trustee.
SECTION 13.02. Execution of Guarantees. To evidence its guarantee to
------------------------
the Holders specified in Section 13.01, the Guarantor hereby agrees to execute
the notation of the Guarantee in substantially the form set forth in Section
2.04 to be endorsed on each Security authenticated and delivered by the Trustee.
The Guarantor hereby agrees that its Guarantee set forth in Section 13.01 shall
remain in full force and effect notwithstanding any failure to endorse on each
Security a notation of such Guarantee. Each such notation of such Guarantee
shall be signed on behalf of the Guarantor, by any Authorized Officer, prior to
the authentication of the Security on which it is endorsed, and the delivery of
such Security by
<PAGE>
116
the Trustee, after the due authentication thereof by the Trustee hereunder,
shall constitute due delivery of the Guarantee on behalf of the Guarantor. Such
signatures upon the notation of the Guarantee may be manual or facsimile
signatures of any present, past or future such Authorized Officers and may be
imprinted or otherwise reproduced below the notation of the Guarantee, and in
case any such Authorized Officer who shall have signed the notation of the
Guarantee shall cease to be such Authorized Officer before the Security on which
such notation is endorsed shall have been authenticated and delivered by the
Trustee or disposed of by the applicable Subsidiary Issuer, such Security
nevertheless may be authenticated and delivered or disposed of as though the
person who signed the notation of the Guarantee had not ceased to be such
Authorized Officer of the Guarantor.
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
________________________________
Name: Craig R.L. Calle
Title:
Attest: ______________________________
Name: Richard L. Krzyzanowski
Title: Secretary
CROWN CORK & SEAL FINANCE PLC,
by
________________________________
Name:
Title:
Attest: ______________________________
Name:
Title:
<PAGE>
117
CROWN CORK & SEAL FINANCE S.A.,
by
________________________________
Name:
Title:
Attest: __________________________
Name:
Title:
THE BANK OF NEW YORK, as Trustee,
by
________________________________
Name:
Title:
Attest: __________________________
Name:
Title:
<PAGE>
Exhibit 12.1
STATEMENT OF COMPUTATION OF RATIO OF EARNINGS TO
FIXED CHARGES
<TABLE>
<CAPTION>
Nine months
ended
September 30,
-------------
1996
-------------
<S> <C>
Computation of Earnings:
Pretax income from continuing operations 366.6
Adjustments to income:
Add: Distributed income from less than
50% owned companies 6.4
Add: Portion of rent expense representative
of interest expense 0.0
Add: Interest incurred net of amounts
capitalized 279.6
Add: Amortization of interest previously
capitalized 1.9
Add: Amortization of debt issue costs and discount
or premium on indebtedness 0.6
------------
Earnings 655.1
------------
Computation of Fixed Charges:
Interest incurred 281.9
Amortization of debt issue costs and discount
or premium on indebtedness 0.6
Portion of rental expense representative
of interest 0.0
Preferred stock dividend requirements 19.0
------------
Fixed Charges 301.5
------------
Ratio of Earnings to Fixed Charges 2.2
</TABLE>
<PAGE>
Exhibit 23.1
Consent of Independent Accountants
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
March 5, 1996, appearing on page 25 of Crown Cork & Seal Company, Inc.'s Annual
Report on Form 10-K for the year ended December 31, 1995. We also consent to the
references to us under the headings "Experts" and "Summary Historical Financial
Information" in such Prospectus. However, it should be noted that Price
Waterhouse LLP has not prepared or certified such "Summary Historical Financial
Information."
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Philadelphia, PA
November 25, 1996
<PAGE>
Exhibit 23.2
Accountants' Consent
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3, any related Registration Statement filed pursuant to Rule
462(b), under the Securities Act of 1933, as amended, and each related
Prospectus of the Registrants hereof of our report dated February 21, 1996
relating to the consolidated financial statements of CarnaudMetalbox, which
report is incorporated by reference into Item 7 (a) and appears in Exhibit 99.1
of Crown's Form 8-K filed on March 1, 1996, as amended by Amendment Nos. 1, 2
and 3. We also consent to the references to us under the heading "Experts" in
such Registration Statements and each related Prospectus.
Paris, 26 November 1996
/s/ Arthur Andersen LLP
Arthur Andersen (1)
/s/ J. P. Crouzet /s/ C. Chevalier
Salustro Reydel (2) C. Chevalier (3)
J. P. Crouzet
(1) For the years ended December 31, 1995, 1994 and 1993.
(2) For the year ended December 31, 1995.
(3) For the years ended December 31, 1994 and 1993.
<PAGE>
[LETTERHEAD OF BEFEC-PRICE WATERHOUSE APPEARS HERE]
Exhibit 23.3
Accountants' Consent
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated February 21, 1996 relating to the
consolidated financial statements of CarnaudMetalbox for the years ended
December 31, 1995, 1994 and 1993, which report is incorporated by reference into
Item 7 (a) and appears in Exhibit 99.1 of Crown's Form 8-K filed on March 1,
1996, as amended by Amendment Nos. 1,2 and 3. We also consent to the references
to us under the heading "Experts" in such Registration Statements and each
related Prospectus.
Paris, November 25, 1996
Befec-Price Waterhouse
/s/ Jean-Pierre Caroff
Jean-Pierre Caroff
