<PAGE> 1
As filed with the Securities and Exchange Commission on December 15, 1997
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Dana Corporation
----------------
(Exact name of registrant as specified in its charter)
Virginia
--------
(State or other jurisdiction of incorporation or organization)
34-4361040
----------
(I.R.S. Employer Identification No.)
4500 Dorr Street, Toledo, Ohio 43615, Telephone: 419-535-4500
-------------------------------------------------------------
(Address and telephone number of registrant's principal executive offices)
Martin J. Strobel, Secretary
Dana Corporation, 4500 Dorr Street, Toledo, Ohio 43615, Telephone: 419-535-4500
-------------------------------------------------------------------------------
(Name, address and telephone number of agent for service)
Copies to:
Robert L. Kohl, Esq., Rosenman & Colin, LLP
575 Madison Avenue, New York, New York 10022, Telephone: 212-940-8800
Adam O. Emmerich, Esq., Wachtell, Lipton, Rosen & Katz
51 West 52nd Street, New York, New York 10019, Telephone: 212-403-1000
Approximate date of commencement of proposed sale to the public: From time to
time after the Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
1
<PAGE> 2
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------
TITLE OF EACH CLASS OF SECURITIES PROPOSED MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED OFFERING PRICE (1) REGISTRATION FEE
- ----------------------------------------------------------------------------------------------
<S> <C> <C>
Common Stock, par value $1 per share
(including related Preferred Share Purchase
Rights) and Debt Securities $600,000,000 $177,000
- ----------------------------------------------------------------------------------------------
<FN>
(1) The maximum aggregate offering price of the Common Stock and the Debt
Securities registered hereunder will not exceed $600,000,000. Pursuant
to Rule 457(o) under the Securities Act of 1933, the registration fee
is calculated on the maximum offering price of all securities listed,
and the table does not specify information about the amount to be
registered, the proposed maximum offering price per unit, or the
proposed maximum aggregate offering price for each class.
</TABLE>
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
will 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.
2
<PAGE> 3
Subject to Completion Dated December 15, 1997
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
PROSPECTUS
DANA CORPORATION
COMMON STOCK
AND DEBT SECURITIES
$600,000,000
-----------------------
Dana Corporation (the "Company") may offer, from time to time, shares of its
common stock, $1 par value (the "Common Stock") and/or its debt securities in
one or more series consisting of notes, debentures and/or other evidences of
indebtedness (the "Debt Securities"), at prices and on terms to be determined at
the time of offering. The aggregate initial offering price of the Common Stock
and the Debt Securities to be offered pursuant to this Prospectus (the
"Securities") will not exceed U.S. $600,000,000 or the equivalent in one or more
foreign currencies or composite currencies.
The particular terms of the Securities for which this Prospectus is being
delivered and the terms of offering for such Securities will be set forth in a
Prospectus Supplement accompanying the Securities (each, a "Prospectus
Supplement"). Without limiting the foregoing, (1) in the case of Common Stock,
the Prospectus Supplement will set forth the public offering price (or the
method of determining the public offering price) and the aggregate number of
shares offered, and (2) in the case of Debt Securities, the Prospectus
Supplement will set forth, as applicable, the specific designation, aggregate
principal amount, authorized denominations, initial offering price, maturity,
rates (or methods of determining rates) and times of payment of any interest,
any terms for exchangeability, conversion, redemption, payment of sinking fund
provisions, the trustee, any additional covenants or events of default, and
currency(ies) in which the principal, any premium and any interest will be paid.
See the "Description of Common Stock" and the "Description of Debt Securities"
below. When applicable, the Prospectus Supplement will also contain certain
information about tax consequences relating to the Securities offered and any
listing of such Securities on a securities exchange.
3
<PAGE> 4
The Company may sell the Securities directly, through agents, underwriters or
dealers, as designated from time to time, or through a combination of such
methods. If agents, underwriters or dealers are involved in the sale of the
Securities, their names and any applicable commissions and discounts will be set
forth in the particular Prospectus Supplement.
Any statement contained in this Prospectus or in a document incorporated herein
by reference will be deemed to be superseded and modified by any inconsistent
statement contained in any Prospectus Supplement or subsequently filed document
incorporated herein by reference.
--------------------
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.
--------------------
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS THAT
STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE COMMON STOCK AND/OR THE
DEBT SECURITIES, INCLUDING OVER-ALLOTMENT, STABILIZING, AND SHORT-COVERING
TRANSACTIONS IN SUCH SECURITIES. FOR A DESCRIPTION OF THESE ACTIVITIES, SEE
"PLAN OF DISTRIBUTION."
--------------------
No person has been authorized to give any information or make any representation
not contained in this Prospectus in connection with the offering of the
Securities. This Prospectus does not constitute an offering by any person in any
state or jurisdiction in which such offering may not lawfully be made. Neither
the delivery of this Prospectus nor any sale made hereunder will create any
implication that there has been no change in the affairs of the Company since
the respective dates as of which information is given herein.
This Prospectus may not be used to consummate sales of the Securities unless
accompanied by a Prospectus Supplement.
The date of this Prospectus is December ___, 1997.
4
<PAGE> 5
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"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 and at the Commission's regional offices at 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661 and 7 World Trade Center,
Suite 1300, New York, New York 10048. Copies of such material also can be
obtained from the Public Reference Section of the Commission, 450 Fifth Street,
N.W., Washington, D.C. 20549 at prescribed rates. The Commission maintains a Web
site that contains reports, proxy and information statements, and other
information filed electronically by the Company at (http://www.sec.gov).
The Common Stock is listed on the New York Stock Exchange, 20 Broad Street, New
York, New York 10005; The Pacific Stock Exchange, 301 Pine Street, San
Francisco, California 94104; and The International (London) Stock Exchange,
London EC2N 1HP. Reports, proxy statements and other information concerning the
Company can be inspected at these exchanges.
The Company has filed a registration statement on Form S-3 (together with all
amendments and exhibits thereto, the "Registration Statement") with the
Commission 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. Reference should be made to the
Registration Statement for further information about the Company and the
Securities.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents have been filed by the Company with the Commission
pursuant to the Exchange Act and are incorporated into this Prospectus by
reference:
(1) The Company's Annual Report on Form 10-K for the fiscal year
ending December 31, 1996;
(2) The Company's Quarterly Reports on Form 10-Q for the quarters
ending March 31, June 30, and September 30, 1997;
(3) All other reports filed pursuant to Section 13(a) or 15 (d) of
the Exchange Act since December 31, 1996;
(4) The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A, dated on or about July 12,
1946, and all amendments thereto and reports filed for the
purposes of updating such description; and
5
<PAGE> 6
(5) The description of the Preferred Share Purchase Rights
contained in the Company's Registration Statement on Form 8-A
dated May 1, 1996.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus and
prior to the termination of the offering of the Securities will be deemed to be
incorporated by reference in this Prospectus.
Copies of documents incorporated in this Prospectus by reference but not
delivered herewith (except the exhibits to such documents, unless such exhibits
are specifically incorporated herein by reference) may be obtained from the
Company, without charge, upon written or oral request directed to Martin J.
Strobel, Secretary, Dana Corporation, P.O. Box 1000, Toledo, Ohio 43697
(telephone: 419-535-4500).
THE COMPANY
Founded in 1904 and based in Toledo, Ohio, the Company (including its
consolidated subsidiaries and its affiliates) is a global leader in the
engineering, manufacture and distribution of products and systems for the
vehicular, industrial and off-highway markets. The Company's six strategic
business units are Automotive Components, Engine Components, Heavy Truck
Components, Off Highway Components, Industrial Components, and Dana Commercial
Credit. Its core products are axles, driveshafts, structural components
(frames), sealing products, filtration products, engine products, industrial
products, and leasing services. The Company operates facilities in 30 countries
and employs more than 48,000 people. Its 1996 sales were $7.7 billion. The
Company's executive offices are located at 4500 Dorr Street, Toledo, Ohio 43615,
telephone 419-535-4500.
RATIO OF EARNINGS TO FIXED CHARGES
The following are the consolidated ratios of earnings to fixed charges for the
Company for the periods indicated:
<TABLE>
<CAPTION>
Nine Months
Ended
September 30 Year Ended December 31
------------ ----------------------
1997 1996 1996 1995 1994 1993 1992
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Consolidated ratio of
earnings to fixed charges 4.3x 3.9x 3.7x 4.0x 4.0x 2.5x 1.3x
</TABLE>
These ratios were computed by dividing the earnings by the fixed charges. For
this purpose, "earnings" consist of income from continuing operations before
taxes, distributed income of less than 50% owned affiliates, fixed charges
(excluding capitalized interest) and income of majority-owned subsidiaries with
fixed charges, and "fixed charges" consist of interest on indebtedness and that
portion of rental expense (one third) which the Company believes to be
representative of interest.
6
<PAGE> 7
USE OF PROCEEDS
The Company expects to use the net proceeds from the sale of the Securities for
general corporate purposes, such as, but not limited to, working capital,
capital expenditures, acquisitions, and the repayment or refinancing of the
Company's indebtedness. When any particular Securities are offered, the
Prospectus Supplement will set forth the Company's intended use of the net
proceeds from the sale of such Securities.
DESCRIPTION OF CAPITAL STOCK
The following descriptions of the Company's capital stock do not purport to be
complete and are qualified in their entirety by reference to the detailed
provisions of the Company's Restated Articles of Incorporation and By-Laws, and,
with respect to the Preferred Share Purchase Rights, the Rights Agreement (as
hereafter defined), copies of which previously have been filed by the Company
with the Commission.
COMMON STOCK
Under its Restated Articles of Incorporation, the Company is authorized to issue
240,000,000 shares of Common Stock. Currently there are approximately
105,305,000 shares of Common Stock issued and outstanding and 13,736,000 shares
reserved in the aggregate for issuance under the several employee and director
stock plans maintained by the Company. The Common Stock is listed on the New
York, Pacific and London Stock Exchanges under the symbol "DCN." The shares of
Common Stock currently outstanding are fully paid and non-assessable and any
such shares offered under a Prospectus Supplement, upon issuance against full
consideration therefor, will also be fully paid and non-assessable.
Holders of the Common Stock are entitled to receive dividends out of funds
legally available for payment thereof in such amounts per share as may be
declared by the Company's Board of Directors.
Holders of the Common Stock are entitled to one vote per share held on all
matters submitted to a vote of the shareholders. The Common Stock is the only
voting class of the Company's capital stock of which shares are currently issued
and outstanding. The shares do not carry cumulative voting rights in electing
directors, which means that, if there is a quorum present or represented at a
meeting at which directors are to be elected, the holders of more than 50% of
the shares voting will elect all of the directors and the holders of less than
50% of the shares voting will not elect any directors.
Upon any liquidation or dissolution of the Company, voluntary or involuntary,
holders of the Common Stock will receive equal shares of the assets of the
Company which are available for distribution to the holders of Common Stock
after payment of all liabilities of the Company and of any liquidation
preferences granted to holders of the Company's preferred stock.
The Common Stock is not convertible, does not have any sinking fund, preemptive
or other subscription rights, and is not subject to redemption.
7
<PAGE> 8
PREFERRED STOCK
Under its Restated Articles of Incorporation, the Company is authorized to issue
up to 5,000,000 shares of Preferred Stock, none of which are currently
outstanding. The Company's Board of Directors has the authority to issue any
such Preferred Stock in one or more series; to fix the number of shares of each
series, its particular designation, its liquidation preference, and the rate of
dividends to be paid; and to determine whether dividends will be cumulative,
whether shares of the series will have voting rights and/or be redeemable, and
whether the particular series will be entitled to a sinking fund and/or to
conversion rights. If Preferred Stock is issued, the amount of funds available
for the payment of dividends on the Common Stock will be reduced by any dividend
obligation that the Board may fix for the Preferred Stock. Holders of Preferred
Stock will also have preferential treatment over holders of Common Stock in the
event of liquidation of the Company. In connection with the issuance of
Preferred Stock, the Board may grant voting rights to the holders of Preferred
Stock which may dilute the voting power of the holders of Common Stock.
JUNIOR PREFERRED STOCK AND PREFERRED SHARE PURCHASE RIGHTS
In connection with the Rights Agreement, dated April 25, 1996, between the
Company and Chemical Mellon Shareholder Services, L.L.C., Rights Agent (the
"Rights Agreement"), the Company's Board of Directors authorized the creation of
a Series A Junior Participating Preferred Stock ("Junior Preferred Stock").
The number of shares constituting the series of Junior Preferred Stock is
1,000,000. Shares of Junior Preferred Stock are issuable only upon the exercise
of Preferred Share Purchase Rights ("Purchase Rights"), in the amount of one
Purchase Right for each share of the Common Stock outstanding on July 25, 1996,
or which become outstanding (including the shares of Common Stock offered under
a Prospectus Supplement) after that date but prior to July 25, 2006, or the date
of certain earlier events. Each Purchase Right entitles its holder, subject to
the provisions of the Rights Agreement, until the earlier of July 25, 2006, or
the redemption of the Purchase Rights, to buy one 1/1000th of a share of Junior
Preferred Stock at an exercise price of $110, subject to adjustment. The
Purchase Rights are redeemable at a price of $0.01 each at any time prior to the
acquisition by any person or entity of beneficial ownership of 15% or more of
the outstanding Common Stock. If any person (or entity) announces that he (or
it) has acquired beneficial ownership of 15% or more of the Common Stock or
commences, or announces an intention to commence, an offer the consummation of
which would result in his (or its) beneficially owning 15% or more of the Common
Stock, separate certificates for the Purchase Rights will be mailed to the
holders of Common Stock and the Purchase Rights will become exercisable and
transferable apart from the Common Stock.
If the Company is acquired in a merger or similar transaction or if 50% of its
assets or earning power are transferred to another company, in either case
without the approval of the Company's Board of Directors, the holder of each
Purchase Right may purchase a number of shares of the acquiring company's common
stock having a market price equal to twice the current exercise price of the
Purchase Right. If 15% (but less than 50%) of
8
<PAGE> 9
the Common Stock is acquired by any person or entity, the Company's Board of
Directors may exchange each Purchase Right for one share of Common Stock. In
these situations, the Purchase Rights owned by any person or entity holding 15%
or more of the Common Stock become void and cannot be exercised.
The Junior Preferred Stock, if issued, will be entitled to a cumulative
preferential quarterly dividend per share equal to the greater of $10 or 100
times the dividend declared on shares of the Common Stock. The Junior Preferred
Stock is redeemable in whole at the Company's option at a cash price per share
of the greater of $100 or 100 times the Current Market Price (as defined in the
Rights Agreement) of the Common Stock. In the event of liquidation, the holders
of the Junior Preferred Stock will be entitled to receive an amount equal to
accrued and unpaid dividends plus an amount per share equal to the greater of
$100 or 100 times the payment made per share to holders of Common Stock. Each
share of Junior Preferred Stock will be entitled to 100 votes, voting together
with the holders of the Common Stock on all matters submitted to the vote of
stockholders. In the event of any merger, consolidation or other transaction in
which Common Stock is exchanged, the holder of each share of Junior Preferred
Stock will be entitled to receive 100 times the amount and type of consideration
paid per share of Common Stock. The rights of the holders of Junior Preferred
Stock as to dividends and liquidations, their voting rights, and their rights in
the event of mergers and consolidations, are protected by customary
anti-dilution provisions.
The Purchase Rights have certain anti-takeover effects. Among other things, the
Purchase Rights may cause substantial dilution to a person or group that
attempts to acquire the Company on terms not approved by the Company's Board of
Directors, except pursuant to an offer conditioned on a substantial number of
Purchase Rights being acquired. The Purchase Rights should not interfere with
any merger or other business combination approved by the Company's Board of
Directors prior to the time that any person or entity has acquired beneficial
ownership of 15% or more of the Common Stock.
VIRGINIA LAW
The Company is a Virginia corporation and is subject to Article 14 (the
"Affiliated Transactions Statute") and Article 14.1 (the "Control Share
Statute") of the Virginia Stock Corporation Act.
Pursuant to the Affiliated Transactions Statute, a Virginia corporation may not
engage in an affiliated transaction with a 10% shareholder and his affiliates
(collectively, the "10% Holder") for three years following the 10% acquisition
unless the transaction is approved by a majority of the disinterested directors
of the corporation and two-thirds of the shares not owned by the 10% Holder. For
purposes of this provision, an affiliated transaction is defined as one of the
following transactions that has not been approved previously by the
corporation's board of directors: a merger, a share exchange, a sale of assets
with a fair market value in excess of 5% of the corporation's consolidated net
worth, a dissolution of the corporation and certain securities transactions. The
10% Holder may effect the affiliated transaction after the three-year period
only if (1) the transaction is approved (a) by two-thirds of the shares not
owned by the 10% Holder or (b) by a majority of the disinterested directors or
(2) the aggregate consideration to be paid in such affiliated
9
<PAGE> 10
transaction meets certain fair price criteria. A corporation may opt out of this
provision by amendment to its articles of incorporation or by-laws approved by
the majority of the outstanding shares of stock not owned by the 10% Holder. The
Company has not opted out of this provision.
Pursuant to the Control Share Statute, if a person (the "Acquiring Person")
acquires shares entitled to vote on the election of directors within one of the
ranges set by the statute (20% or more and less than one-third, one-third or
more but less than a majority, or a majority), it automatically loses the right
to vote the shares that fall within such range. The Acquiring Person can demand
a meeting of shareholders to vote on whether the "disqualified" shares will have
voting rights. The voting rights of the "disqualified" shares can be restored by
the affirmative vote of a majority of "disinterested shares" at such a
shareholders meeting. For purposes of the Control Share Statute, "disinterested
shares" include all outstanding shares except those held by the Acquiring Person
and the corporation's officers and employee-directors. A corporation can opt out
of the Control Share Statute by amendment to its articles or by-laws and the
Company has done so.
DESCRIPTION OF DEBT SECURITIES
The following summary sets forth the material terms under which the Company
expects to offer the Debt Securities. The terms of the particular Debt
Securities offered by any Prospectus Supplement and the extent to which the
following terms apply will be set forth in the Prospectus Supplement.
GENERAL
The Debt Securities will be issued under an indenture or indentures and one or
more indenture supplements (collectively, the "Indenture") between the Company
and Citibank, N.A. (the "Trustee"). The terms of the Debt Securities will
include those stated in the Indenture and those made a part thereof by reference
to the Trust Indenture Act of 1939 (the "TIA") as in effect on the date of the
Indenture.
The Indenture will provide for the issuance of Debt Securities by the Company in
an unlimited amount from time to time in one or more series. The Indenture will
not limit the amount of debt, either secured or unsecured, which the Company may
issue under the Indenture or otherwise.
The Prospectus Supplement relating to the particular Debt Securities offered
thereby will describe the following terms of such Debt Securities: (1) the title
of the Debt Securities; (2) the price (expressed as a percentage of the
aggregate principal amount thereof) at which the Debt Securities will be issued;
(3) any limit upon the aggregate principal amount of the Debt Securities; (4)
the date(s) on which the Debt Securities will mature and any provisions for
extending such date(s); (5) the rate(s) (which may be fixed or variable) per
annum at which the Debt Securities will bear interest (if any), or the manner in
which such rate(s) will be determined; (6) the date(s) from which any such
interest will accrue and on which any such interest will be payable, and any
regular record dates for determining the holders to whom such interest will be
payable; (7) the place(s) where the principal of and any premium and interest on
the Debt Securities will
10
<PAGE> 11
be payable; (8) any obligation or right of the Company to redeem, repurchase or
repay the Debt Securities (in whole or in part) pursuant to any sinking fund or
analogous provisions or at the option of the holders or the Company, and the
price(s) at which, period(s) within which, and terms upon which the Debt
Securities will be redeemed, repurchased or repaid pursuant to such obligation;
(9) the denominations in which the Debt Securities will be issued (if other than
denominations of U.S. $1,000 and any integral multiple thereof); (10) the
currency or composite currency in which payment of the principal of and any
premium and interest on the Debt Securities will be payable (if other than
United States currency); (11) whether the Debt Securities will be issued in the
form of one or more permanent Global Securities and, if so, the identity of the
Depositary for the same; (12) the portion of the principal amount of the Debt
Securities which will be payable upon declaration of the acceleration of the
maturity thereof (if other than the principal amount); (13) any additions to or
changes in the covenants or events of default set forth below which will apply
to the Debt Securities; (14) any conversion or exchange provisions; and (15) any
other terms of the Debt Securities (which terms will be consistent with the
applicable Indenture).
Unless otherwise set forth in the Prospectus Supplement, the Debt Securities
will be issued only in fully registered form without coupons, in denominations
of U.S. $1,000 or any integral multiple thereof (or comparable integral
multiples in foreign currency). If the Debt Securities are offered or payable in
any foreign currency, the Prospectus Supplement will set forth applicable
information about the foreign currency units, restrictions, elections, tax
consequences, and any other special information about the Debt Securities.
If the Debt Securities are issued at a discount from their principal amount
("Original Issue Discount Securities"), the Prospectus Supplement will set forth
any applicable federal income tax or other special considerations.
Unless otherwise set forth in the Prospectus Supplement, the principal of and
any premium and interest on the Debt Securities will be payable, and the
exchange and transfer of the Debt Securities will be registerable, at the office
of the Trustee or at any other office or agency maintained by the Company for
such purpose, subject to the limitations of the Indenture. No service charge
will be made for any registration of transfer or exchange of the Debt
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge imposed in connection therewith.
RANKING
The Company currently intends to issue the Debt Securities as unsecured and
unsubordinated debt ranking pari passu with all other unsecured and
unsubordinated debt of the Company.
If the Company determines to issue any or all of the Debt Securities as
subordinated debt ("Subordinated Debt Securities"), the Prospectus Supplement
relating to such Subordinated Debt Securities will set forth the terms of any
indenture that may apply
11
<PAGE> 12
and the rights of the holders of the Subordinated Debt Securities (the
"Subordinated Indenture").
CONVERSION AND EXCHANGE
If the Debt Securities are convertible into or exchangeable for Common Stock or
Preferred Stock, property or cash, or any combination thereof, the Prospectus
Supplement will set forth the terms of conversion or exchange, including whether
such conversion or exchange is mandatory or at the option of the holders or of
the Company. If applicable, the Prospectus Supplement will also set forth the
factors and time for calculating the number of shares of Common Stock or
Preferred Stock to be received by the holders of the Debt Securities upon
conversion or exchange.
GLOBAL SECURITIES
The Debt Securities may be issued (in whole or part) in the form of one or more
Global Securities that will be deposited with, or on behalf of, a depositary
identified in the Prospectus Supplement (the "Depositary") and registered in the
name of the Depositary or its nominee (the "Nominee").
The specific terms of the depositary arrangement with respect to any series of
Debt Securities will be described in the Prospectus Supplement. The Company
anticipates that the following provisions will apply to all depositary
arrangements.
Upon the issuance of a Global Security, the Depositary or the Nominee will
credit the respective principal amount of the Debt Securities represented by the
Global Security on its book-entry registration and transfer system. Such
accounts will be designated by the underwriters or agents with respect to the
Debt Securities, or by the Company if it is offering and selling the Debt
Securities directly. Ownership of beneficial interests in the Global Security
will be limited to the designated participants and persons that may hold
interests through such participants. Such ownership will be shown on, and the
transfer of that ownership will be effected only through, records maintained by
the Depositary or Nominee (with respect to interests of the participants) and
records of the participants (with respect to interests of persons other than the
participants). The laws of some states may require that certain purchasers of
securities take physical delivery of such securities in definitive form (that
is, in the form of certificates registered in their names), and such laws may
impair the ability to transfer beneficial interests in a Global Security.
So long as either the Depositary or the Nominee is the registered owner of the
Global Security, it will be considered the sole owner or holder of the Debt
Securities represented by the Global Security for all purposes under the
Indenture governing the Debt Securities. Except as provided below, owners of
beneficial interests in the Global Security will not be entitled to have the
Debt Securities registered in their names, will not receive or be entitled to
receive physical delivery of Debt Securities in definitive form, and will not be
considered the owners or holders thereof under the Indenture governing the Debt
Securities.
12
<PAGE> 13
The principal of and any premium and interest on the Debt Securities registered
in the name of either the Depository or the Nominee will be paid to it as the
registered owner of the Global Security representing the Debt Securities. The
Company and the Trustee, Paying Agent(s) and Security Registrar(s) for the Debt
Securities will have no responsibility or liability for any aspect of the
records relating to or the payments made on account of beneficial ownership
interests of the Global Security (including the maintaining, supervising or
reviewing of any records relating to such interests).
The Company expects that the Depositary or the Nominee, as applicable, upon
receipt of any payment of the principal of or any premium and interest with
respect to the Debt Securities, will credit the participants' accounts
immediately with payments in amounts proportionate to their respective
beneficial interests in the principal amount of the Global Security, as shown on
the Depositary's or Nominee's records. The Company also expects that payments by
participants to owners of beneficial interests in the Global Security held
through such participants will be governed by standing instructions and
customary practices (as is now the case with securities held for the accounts of
customers registered in "street name") and will be the responsibility of such
participants.
If the Depositary is at any time unwilling or unable to continue as depositary
and a successor depositary is not appointed by the Company within 90 days, the
Company will issue the Debt Securities in definitive form in exchange for the
Global Security representing the Debt Securities. Further, if the Company so
specifies with respect to the Debt Securities, an owner of a beneficial interest
in the Global Security representing the Debt Securities may, on terms acceptable
to the Company and the Depositary or Nominee, receive the Debt Securities in
definitive form. In such case, the owner of the beneficial interest in the
Global Security will be entitled to physical delivery in definitive form of Debt
Securities equal in principal amount to its beneficial interest and to have such
Debt Securities registered in its name. Such Debt Securities will be issued in
denominations of U.S. $1,000 and integral multiples thereof, unless otherwise
specified by the Company.
COVENANTS
Certain Definitions
The following terms are defined substantially as in Section 1.01 of the
Indenture.
"Consolidated Net Tangible Assets" means the total assets (less applicable
reserves and other properly deductible items) on the balance sheet of the
Company and its consolidated Subsidiaries for the most recent fiscal quarter,
less (1) all current liabilities and (2) goodwill, trade names, patents,
organization expenses and other like intangibles of the Company and its
Subsidiaries.
"Funded Debt" means indebtedness for borrowed money owed or guaranteed by the
Company or any Restricted Subsidiary, and any other indebtedness which under
generally accepted accounting principles would appear as debt on the
consolidated balance sheet of the Company, maturing by its terms more than 12
months from the date of the
13
<PAGE> 14
determination thereof, including any indebtedness renewable or extendible at the
option of the obligor to a date more than 12 months from the date of
determination thereof.
"Material Adverse Effect" means a material adverse effect on the business,
assets, financial condition or results of operations of the Company and its
Subsidiaries, taken as a whole.
"Principal Property" means any real property (including buildings and other
improvements) of the Company or any Restricted Subsidiary, owned currently or
hereafter acquired (other than any pollution control facility, cogeneration
facility or small power production facility), which has a book value in excess
of 2% of Consolidated Net Tangible Assets.
"Restricted Subsidiary" means any Subsidiary of the Company other than an
"Unrestricted Subsidiary." An "Unrestricted Subsidiary" means any Subsidiary
designated as such from time to time by the Board of Directors of the Company.
As of the date of this Prospectus, there are no Unrestricted Subsidiaries.
"Sale and Leaseback Transaction" means any arrangement with any person or entity
providing for the leasing by the Company or any Restricted Subsidiary of any
Principal Property whereby such Principal Property has been or is to be sold or
transferred by the Company or the Restricted Subsidiary to such person or
entity, excluding any such arrangement involving a lease for a term (including
renewal rights) of not more than 36 months.
"Secured Debt" means indebtedness (other than indebtedness among the Company and
Restricted Subsidiaries) for money borrowed, or other indebtedness on which
interest is paid or payable, which is secured by (1) a lien on any Principal
Property of the Company or a Restricted Subsidiary or on the stock or
indebtedness of a Restricted Subsidiary, or (2) any guarantee of indebtedness of
the Company by a Restricted Subsidiary.
"Subsidiary" means any corporation, partnership or other business entity of
which the Company, or the Company and one or more of its Subsidiaries, or one or
more of the Subsidiaries, directly or indirectly owns more than 50% of the
voting stock.
Limitations on Liens
The Company covenants not to incur or guarantee any Secured Debt without equally
and ratably securing the Debt Securities, and not to permit its Restricted
Subsidiaries to do so.
This covenant is not applicable to (1) Secured Debt existing at the date of the
Indenture; (2) liens on real or personal property acquired, constructed or
improved by the Company or a Restricted Subsidiary after the date of the
Indenture which are created contemporaneously with, or within 12 months after,
the acquisition, construction or improvement to secure all or any part of the
purchase price of such property or the cost of such construction or
improvement; (3) mortgages on property of the Company or a Restricted
Subsidiary created within 12 months of the completion of construction or
improvement of any new
14
<PAGE> 15
plant(s) on such property to secure the cost of such construction or
improvement; (4) liens on property existing at the time the property was
acquired by the Company or any Restricted Subsidiary; (5) liens on the
outstanding shares or indebtedness of a corporation existing at the time such
corporation becomes a Subsidiary; (6) liens on stock (except stock of
Subsidiaries) acquired after the date of the Indenture if the aggregate cost
thereof does not exceed 15% of the Consolidated Net Tangible Assets; (7) liens
securing indebtedness of a successor corporation to the Company to extent
permitted by the Indenture; (8) liens securing indebtedness of a Restricted
Subsidiary at the time it became such; (9) liens securing indebtedness of any
entity outstanding at the time it merged with, or substantially all of its
properties were acquired by, the Company or any Restricted Subsidiary; (10)
liens created, incurred or assumed in connection with an industrial revenue
bond, pollution control bond or similar financing arrangement between the
Company or any Restricted Subsidiary and any federal, state or municipal
government or other governmental body or quasi-governmental agency; (11) liens
in connection with government or other contracts to secure progress or advance
payments; (12) liens in connection with taxes or legal proceedings to the extent
such taxes or legal proceedings are being contested or appealed in good faith or
are incurred for the purpose of obtaining a stay or discharge in the course of
such proceedings; (13) liens consisting of mechanics' or materialmen's or
similar liens incurred in the ordinary course of business and easements, rights
of way, zoning restrictions, restrictions on the use of real property and
defects and irregularities in title thereto; (14) liens made in connection with
or to secure payment of workers' compensation, unemployment insurance, or
social security obligations; (15) liens in connection with the Sale and
Leaseback Transactions which are not subject to the limitations described below
under "Limitations on Sale and Leaseback"; (16) mortgages to secure debt of a
Restricted Subsidiary to the Company or to another Restricted Subsidiary; and
(17) extensions, renewals or replacements of the foregoing permitted liens to
the extent of the original amounts thereof.
In addition, the Company and its Restricted Subsidiaries may have Secured Debt
which would not otherwise be permitted or excepted without equally and ratably
securing the Debt Securities, if the sum of such Secured Debt plus the aggregate
value of Sale and Leaseback Transactions subject to the limitations described
below does not exceed 15% of Consolidated Net Tangible Assets.
Limitations on Sale and Leaseback
The Company covenants not to engage in any Sale and Leaseback Transactions
involving any Principal Property, or to permit any of its Restricted
Subsidiaries which has been in operation for more than 180 days to do so, unless
(1) the Company or such Restricted Subsidiary would be entitled to incur Secured
Debt on such Principal Property equal to the amount realizable upon such sale or
transfer as if such amount were secured by a mortgage, without equally and
ratably securing the Debt Securities; or (2) an amount equal to the greater of
the net proceeds of the sale or the fair value of such Principal Property is
applied within 180 days either to (a) the retirement of indebtedness of the
Company that was Funded Debt at the time it was created or (b) the purchase of
other Principal Property having a value at least equal to the greater of such
amounts; or (iii) the Sale and Leaseback Transaction involved an industrial
revenue bond, pollution control bond or other similar financing arrangement
between
15
<PAGE> 16
the Company or any Restricted Subsidiary and any federal, state or municipal
government or other governmental body or agency.
Payment of Taxes
The Company covenants to pay, before they become delinquent, (1) all taxes and
other government charges levied on the Company or any Subsidiary or on the
income, profits or property of the Company or any Subsidiary, and (2) all lawful
claims for labor, material and supplies which might become a lien and have a
Material Adverse Effect. However, the Company will not be required to pay taxes,
assessments or charges if the amount, applicability or validity of the same is
being contested in good faith by appropriate proceedings.
Existence
The Company covenants to do all things necessary to keep its existence, rights
and franchises in full force and effect, and to cause its Subsidiaries to do the
same. However, neither the Company nor any Subsidiary will be required to
preserve any right or franchise (or, in the case of a Subsidiary, its existence)
if the Company determines that the same is no longer desirable in the conduct of
the Company's business and that the loss or termination of the same will not
result in a Material Adverse Effect.
Compliance with Laws
The Company covenants that it will comply with all applicable federal, state,
local and foreign laws, rules, regulations and ordinances, and will cause its
Subsidiaries to do the same, in each case to the extent that the failure to so
comply would have a Material Adverse Effect.
EVENTS OF DEFAULT
Unless otherwise set forth in the Prospectus Supplement, the following will be
"Events of Default" under the Indenture with respect to the series of Debt
Securities issued thereunder: (1) a default for 30 days in the payment of any
interest on the Debt Securities when due; (2) the failure to pay the principal
of or any premium on the Debt Securities when due; (3) the failure to deposit
any mandatory sinking fund installment with respect to the Debt Securities when
due; (4) the failure to observe or perform any other covenant in the Indenture
applicable to the Debt Securities (other than a covenant included in the
Indenture for the benefit of another series of Debt Securities) continuing
beyond any applicable grace period; (5) certain events of bankruptcy, insolvency
or reorganization; and (6) any other event of default specified in the
Prospectus Supplement.
The Indenture will provide that, upon the occurrence of an Event of Default
(after expiration of any applicable grace period), the Trustee or the holders of
25% of the aggregate principal amount of the outstanding Debt Securities of any
series may declare the principal amount of and any accrued but unpaid interest
on such Debt Securities immediately due and payable. After any such acceleration
with respect to the
16
<PAGE> 17
Debt Securities, the holders of a majority of the aggregate principal amount of
the outstanding Debt Securities may rescind and annul such declaration before a
judgment or decree for payment of money has been obtained.
The Indenture will provide that within 90 days after the occurrence of an Event
of Default with respect to any series of Debt Securities, the Trustee will give
notice to the holders thereof of all uncured and unwaived defaults known to it
(including events which, after notice or lapse of time or both will become
Events of Default); provided that, except in the case of default in the payment
of the principal of, any premium or interest on, or any mandatory sinking fund
installment on, such Debt Securities, the Trustee will be protected in
withholding such notice if it determines in good faith that withholding the
notice is in the best interest of such holders.
The Indenture will provide that the holders of a majority of the aggregate
principal amount of any series of Debt Securities outstanding will have the
right to direct the time, method and place for conducting any proceeding for any
remedy available to the Trustee, or exercising any power or trust conferred on
the Trustee, provided that such direction is in accordance with law and the
provisions of the Indenture.
If an Event of Default occurs and is continuing, the Trustee will exercise its
rights and powers under the Indenture and use the same degree of skill and care
in such exercise as a prudent person would use under the circumstances in the
conduct of his own affairs. Subject thereto, the Trustee will not be obligated
to exercise its rights or powers under the Indenture at the request of the
holders of the Debt Securities unless they have offered the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which it may
incur in compliance with such request.
Unless otherwise provided in the Indenture, the holders of a majority of the
aggregate principal amount of the outstanding Debt Securities, on behalf of all
holders of such Debt Securities, may waive (1) any past default under the
Indenture (except a default in the payment of the principal of or any premium or
interest on the Debt Securities) or (2) compliance by the Company with certain
restrictive provisions of the Indenture.
Under the Indenture, the Company will be required to furnish annually to the
Trustee a statement about the Company's performance of certain of its
obligations under the Indenture and any default in such performance.
MERGER
The Indenture will provide that the Company may consolidate with, or sell, lease
or convey all or substantially all of its assets to, or merge into any other
corporation, without the consent of the holders of the Debt Securities, provided
that (1) the successor corporation is organized and existing under the laws of
the United States or a State thereof and expressly assumes the due and punctual
payment of the principal of and any premium and interest on the Debt Securities
according to their terms and the due and punctual performance and observance of
the covenants and conditions of the Indenture to be performed by the Company,
and (2) after giving effect to the transaction, no Event of Default will have
occurred and be continuing. Except as set forth herein or
17
<PAGE> 18
in any Prospectus Supplement, the Indenture will not contain any covenants or
other provisions designed to afford the holders of the Debt Securities
protection in the event of a takeover, recapitalization or highly leveraged
transaction involving the Company.
MODIFICATION OF THE INDENTURE
The Company and the Trustee may amend or modify the Indenture from time to time
for administrative convenience or necessity, provided that the changes do not
materially adversely affect the rights of the holders of the Debt Securities.
Moreover, with the consent of the holders of a majority in aggregate principal
amount of the outstanding Debt Securities, the Company and the Trustee may amend
or modify the Indenture so as to affect the rights of the holders of the Debt
Securities, except that, without the consent of the holder of each Debt Security
affected thereby, no amendment or modification may (1) extend the time of
maturity of the principal of or any installment of interest on the Debt
Securities; (2) reduce the principal of or any premium or rate of interest on
the Debt Securities; or (3) reduce the percentage in principal amount of
outstanding Debt Securities the consent of whose holders is required to waive
compliance with certain provisions of the Indenture or to waive certain events
of default and their consequences.
DISCHARGE AND DEFEASANCE
The Company may satisfy and discharge its obligations under the Indenture (other
than its obligation to pay the principal of and any premium and interest on the
Debt Securities and certain other specified obligations) if it (1) irrevocably
deposits with the Trustee, as trust funds, the amount (in money or U.S.
government obligations maturing as to principal and interest) sufficient to pay
the principal of and any premium and interest on the Debt Securities and any
mandatory sinking fund obligations with respect thereto on the stated maturity
date of such payments or on any redemption date, and (2) complies with any
additional conditions specified to be applicable with respect to the defeasance
of such Debt Securities.
The terms of any series of Debt Securities may also provide for legal defeasance
pursuant to the Indenture. In such case, if the Company (1) irrevocably deposits
money or U.S. government obligations as described above, (2) makes a request to
the Trustee to be discharged from its obligations on such Debt Securities, and
(3) complies with any additional conditions specified to be applicable with
respect to the legal defeasance of such Debt Securities, then the Company will
be deemed to have paid and discharged the entire indebtedness on all such
outstanding Debt Securities under the Indenture and the obligation of the
Company to pay the principal of and any premium and interest on such Debt
Securities shall cease, terminate and be completely discharged and the holders
of the Debt Securities will be entitled only to payment out of the money or U.S.
government obligations deposited with the Trustee, unless the Company's
obligations are revived and reinstated because the Trustee is unable to apply
such trust fund due to any legal proceeding, order or judgment.
18
<PAGE> 19
PLAN OF DISTRIBUTION
The Company may offer the Securities directly to purchasers, to or through
underwriters, through dealers or agents, or through a combination of such
methods.
If underwriters are used in an offering of the Securities, the Company will
execute an underwriting agreement with such underwriters and will set out the
name of each underwriter and the terms of the transaction (including any
underwriting discounts and other terms constituting compensation of the
underwriters and any dealers) in the Prospectus Supplement. If an underwriting
syndicate is used, the managing underwriter(s) will be set forth on the cover of
the Prospectus Supplement. Such Securities will be acquired by the underwriters
for their own accounts 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. Any initial public
offering price and any discounts or concessions allowed or reallowed or paid to
dealers may be changed from time to time.
If dealers are used in an offering of Securities, the Company will sell such
Securities to the dealers as principals. The dealers then may resell such
Securities to the public at varying prices which they determine at the time of
resale. The names of the dealers and the terms of the transaction will be set
forth in the Prospectus Supplement.
If agents are used in an offering of Securities, the names of the agents and the
terms of the agency will be set forth in the Prospectus Supplement. Unless
otherwise indicated in the Prospectus Supplement, the agents will act on a
best-efforts basis for the period of their appointment.
Dealers and agents named in a Prospectus Supplement may be deemed to be
underwriters (within the meaning of the Securities Act) of the Securities
described therein. Underwriters, dealers and agents, may be entitled to
indemnification by the Company against certain liabilities (including
liabilities under the Securities Act) under underwriting or other agreements
entered into with the Company.
The Company may solicit offers to purchase the Securities from, and sell the
Securities directly to, institutional investors or others who may be deemed to
be underwriters within the meaning of the Securities Act with respect to any
resales thereof. The terms of any such offer will be set forth in the Prospectus
Supplement.
Certain underwriters, dealers or agents and their associates may engage in
transactions with, and perform services for, the Company in the ordinary course
of business, including refinancing of the Company's indebtedness.
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters or other persons acting as the Company's agents to solicit offers
by certain institutions to purchase the Securities from the Company pursuant to
contracts providing for payment and delivery on a future date. Institutions with
which such contracts may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and others, but in all
19
<PAGE> 20
cases such institutions must be approved by the Company. The obligations of any
purchaser under any such contract will be subject to the condition that the
purchase of the Securities will not, at the time of delivery, be prohibited
under the laws of any jurisdiction to which such purchaser is subject. The
underwriters and such other agents will not have any responsibility for the
validity or performance of such contracts.
To facilitate an offering of a series of Securities, certain persons
participating in the offering may engage in transactions that stabilize,
maintain or otherwise affect the price of the Securities. This may include
over-allotments or short sales of the Securities, which involves the sale by
persons participating in the offering of more Securities than have been sold to
them by the Company. In such circumstances, such persons would cover such
over-allotments or short positions by purchasing in the open market or by
exercising their over-allotment options. In addition, such persons may stabilize
or maintain the price of the Securities by bidding for or purchasing Securities
in the open market or by imposing penalty bids, whereby selling concessions
allowed to dealers participating in any such offering may be reclaimed if
Securities sold by them are repurchased in connection with stabilization
transactions. The effect of these transactions may be to stabilize or maintain
the market price of the Securities at a level above that which might otherwise
prevail in the open market. Such transactions, if commenced, may be discontinued
at any time.
LEGAL MATTERS
Certain legal matters with respect to the Securities offered hereby will be
passed upon for the Company by Rosenman & Colin, LLP of New York, New York and
Hunton & Williams of Richmond, Virginia. Robert L. Kohl, a member of Rosenman &
Colin, LLP, owns 1,041 shares of the Company's Common Stock.
Certain legal matters will also be passed upon by Wachtell, Lipton, Rosen & Katz
of New York, counsel for the underwriters, and by such other counsel for the
underwriters or agents as are identified in any Prospectus Supplement. Wachtell,
Lipton, Rosen & Katz performs legal services for the Company from time to time.
EXPERTS
The financial statements incorporated in this Prospectus by reference to the
Annual Report on Form 10-K for the year ended December 31, 1996, have
been so incorporated in reliance upon the report of Price Waterhouse LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
20
<PAGE> 21
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following expenses will be paid by the Company:
Securities and Exchange Commission Registration Fee $177,000
Accounting Fees and Expenses 60,000
Legal Fees and Expenses 150,000
Trustees' Fees and Expenses 60,000
Rating Agency Fees 230,000
Blue Sky Fees and Expenses 10,000
Printing and Engraving Expenses 105,000
Miscellaneous Expenses 120,000
-------
Total $912,000
All expenses other than the Commission registration fee are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under the Virginia Stock Corporation Act, in certain circumstances the Company
is authorized to indemnify its directors and officers against liabilities
(including reasonable defense expenses) they may incur in proceedings in which
they are named as parties because of their positions as directors and officers
of the Company.
Pursuant to this authorization, the shareholders have adopted the SIXTH Article
of the Company's Restated Articles of Incorporation. This Article provides that
in any proceeding brought by a shareholder in the right of the Company or on
behalf of the shareholders, no director or officer of the Company shall be
liable for monetary damages exceeding $50,000 with respect to any transaction,
occurrence or course of conduct unless such person engaged in willful misconduct
or a knowing violation of criminal law or of any federal or state securities
law. The Article further provides that the Company shall indemnify any director
or officer who is a party to any proceeding (including a proceeding brought by a
shareholder in behalf of the Company or the Company's shareholders) by reason of
the fact that he or she is or was a director or officer of the Company against
any liability incurred in connection with such proceeding, unless he or she
engaged in willful misconduct or a knowing violation of criminal law. In
addition, the Company will pay or reimburse all reasonable expenses (including
attorneys' fees) incurred by the director or officer in connection with such
proceeding in advance of the disposition of the proceeding if certain conditions
are met. In general, all indemnification will be made in accordance with Section
13.1-701 of the Virginia Stock Corporation Act.
As authorized in the Restated Articles of Incorporation, the Board of Directors
has adopted a By-Law provision under which the Company will indemnify its
directors and
II-1
<PAGE> 22
officers in comparable manner against liabilities they may incur when serving at
the Company's request as directors, officers, employees or agents of other
corporations or certain other enterprises.
The Company carries primary and excess "Executive Liability and Indemnification"
insurance covering certain liabilities incurred by the directors, elected
officers, and certain appointed officers of the Company in the performance of
their duties. Coverage is either on a direct basis or through reimbursement of
amounts expended by the Company for indemnification of these individuals.
Subject to certain deductibles, the insurers will pay or reimburse all covered
costs incurred up to an annual aggregate of $50 million. Coverage is excluded
for purchases or sales of securities in violation of Section 16(b) of the
Exchange Act, deliberately fraudulent or willful violations of any statute or
regulation, illegal personal gain, and certain other acts.
ITEM 16. EXHIBITS.
The following exhibits are filed with this Registration Statement:
1-A* Form of Underwriting Agreement (Common Stock)
1-B* Form of Underwriting Agreement (Debt Securities)
3-A Restated Articles of Incorporation (incorporated by reference to
Exhibit 4 to Registrant's Form 8-A/A, Amendment No. 3, dated October
4, 1994)
3-B Restated By-Laws (incorporated by reference to Exhibit 3-B to
Registrant's Form 10-K for the fiscal year ended December 31, 1996)
4-A Single Denomination Stock Certificate (incorporated by reference to
Exhibit 4-B to Registrant's Form S-3, Registration No. 333-18403,
filed December 20, 1996)
4-B Indenture for Senior Securities between Dana Corporation and
Citibank, N.A., Trustee, dated as of December 15, 1997
4-C Form of Debt Securities (included in Exhibit 4-B)
5* Opinion of Hunton & Williams
12 Computation of Ratio of Earnings to Fixed Charges
23-A Consent of Price Waterhouse LLP
23-B* Consent of Hunton & Williams (included in Exhibit 5)
II-2
<PAGE> 23
24 Power of Attorney
25 Form T-1 Statement of Eligibility Under the Trust Indenture Act of
1939 of a Corporation Designated to Act as Trustee
*To be filed by amendment or as an exhibit to a document to be incorporated by
reference herein.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of this 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 this Registration Statement;
provided that, 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 20% change in
the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement; and
(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 paragraphs (1)(i) and (1)(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 Registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this Registration
Statement.
(2) That, for the purposes of determining any liability under the
Securities Act of 1933, each such post-effective amendment
will be deemed to be a new registration statement relating to
the securities offered therein, and the
II-3
<PAGE> 24
offering of such securities at that time will be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in the Registration Statement will be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time will be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of
prospectus filed as part of this Registration Statement in
reliance upon Rule 430A and contained in a form of prospectus
filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of
this Registration Statement as of the time it was declared
effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
The undersigned Registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the Act.
II-4
<PAGE> 25
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Toledo, State of Ohio, on December 15, 1997.
DANA CORPORATION (Registrant)
By: /s/ Martin J. Strobel
-------------------------------
Martin J. Strobel
Secretary
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
PRINCIPAL EXECUTIVE OFFICER:
<S> <C> <C>
/s/ S. J. Morcott Chairman of the Board December 15, 1997
- ------------------------------------ and Chief Executive Officer
S. J. Morcott
PRINCIPAL FINANCIAL OFFICER:
/s/ J. S. Simpson Chief Financial Officer December 15, 1997
- ---------------------------------
J. S. Simpson
PRINCIPAL ACCOUNTING OFFICER:
/s/ C. W. Hinde Chief Accounting Officer December 15, 1997
- ---------------------------------
C. W. Hinde
</TABLE>
II-5
<PAGE> 26
SIGNATURE TITLE DATE
- --------- ----- ----
DIRECTORS:
* /s/ B. F. Bailar Director December 15, 1997
------------------------------
B. F. Bailar
* /s/ E. M. Carpenter Director December 15, 1997
------------------------------
E. M. Carpenter
* /s/ E. Clark Director December 15, 1997
------------------------------
E. Clark
* /s/ G. H. Hiner Director December 15, 1997
------------------------------
G. H. Hiner
/s/ J. M. Magliochetti Director December 15, 1997
------------------------------
J. M. Magliochetti
* /s/ M. R. Marks Director December 15, 1997
------------------------------
M. R. Marks
* /s/ R. B. Priory Director December 15, 1997
------------------------------
R. B. Priory
* /s/ J. D. Stevenson Director December 15, 1997
------------------------------
J. D. Stevenson
* /s/ T. B. Sumner, Jr. Director December 15, 1997
------------------------------
T. B. Sumner, Jr.
* By: /s/ Martin J. Strobel
------------------------------
Martin J. Strobel
Attorney-in-Fact
II-6
<PAGE> 27
<TABLE>
<CAPTION>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION PAGE
----------- ----------- ----
<S> <C> <C>
1-A* Form of Underwriting Agreement (Common Stock)
1-B* Form of Underwriting Agreement (Debt Securities)
3-A Restated Articles of Incorporation (incorporated by reference to
Exhibit 4 to Registrant's Form 8-A/A, Amendment No. 3, dated
October 4, 1994)
3-B Restated By-Laws (incorporated by reference to Exhibit 3-B
to Registrant's Form 10-K for the fiscal year ended
December 31, 1996)
4-A Single Denomination Stock Certificate (incorporated by
reference to Exhibit 4-B to Registrant's Form S-3,
Registration No. 333-18403, filed December 20, 1996)
4-B Indenture for Senior Securities between Dana Corporation II-8
and Citibank, N.A., Trustee, dated as of December 15,
1997
4-C Form of Debt Securities (included in Exhibit 4-B)
5* Opinion of Hunton & Williams
12 Computation of Ratio of Earnings to Fixed Charges II-85
23-A Consent of Price Waterhouse LLP II-86
23-B* Consent of Hunton & Williams (included in Exhibit 5)
24 Power of Attorney II-87
25 Form T-1 Statement of Eligibility Under the Trust Indenture II-88
Act of 1939 of a Corporation Designated to Act as Trustee
<FN>
* To be filed by amendment or as an exhibit to a document to be incorporated by
reference herein.
</TABLE>
II-7
<PAGE> 1
Exhibit 4-B
Dana Corporation
and
Citibank, N.A., Trustee
Indenture
Dated as of December 15, 1997
SENIOR SECURITIES
II-8
<PAGE> 2
DANA CORPORATION
Senior Securities
Cross Reference Sheet(1)
This Cross Reference Sheet shows the location in the
Indenture of the provisions inserted pursuant
to Sections 310 - 318(a), inclusive, of the
Trust Indenture Act of 1939, as amended.
<TABLE>
<CAPTION>
Trust Indenture Act Sections of Indenture
------------------- ---------------------
<S> <C> <C> <C>
Section 310 (a)(1) .......................... 9.08
(a)(2) .......................... 9.08
(a)(3) .......................... Inapplicable
(a)(4) .......................... Inapplicable
(a)(5) .......................... 9.08
(b) .......................... 9.07 and 9.09
(c) .......................... Inapplicable
Section 311 (a) .......................... 9.12
(b) .......................... 9.12
(c) .......................... Inapplicable
Section 312 (a) .......................... 7.01 and 7.02
(b) .......................... 7.02
(c) .......................... 7.02
Section 313 (a) .......................... 7.03
(b) .......................... 7.03
(c) .......................... 7.03
(d) .......................... 7.03
Section 314 (a) .......................... 7.04
(a)(4) .......................... 1.01 and 6.07
(b) .......................... Inapplicable
(c)(l) .......................... 13.05
(c)(2) .......................... 13.05
(c)(3) .......................... Inapplicable
(d) .......................... Inapplicable
(e) .......................... 13.05
(f) .......................... Inapplicable
Section 315 (a) ........................... 9.01
(b) .......................... 8.08
(c) .......................... 9.01
(d) .......................... 9.01
(e) .......................... 8.07
Section 316 (a) .......................... 1.01
(a)(l)(A) ..................... 8.01 and 8.06
(a)(l)(B) .......................... 8.01
<FN>
____________________
(1) The Cross Reference Sheet is not part of the Indenture.
</TABLE>
II-9
<PAGE> 3
<TABLE>
<S> <C> <C>
(a)(2) ............................. Inapplicable
(b) ................................ 8.09
(c) . .............................. 13.11
Section 317 (a)(1) ............................. 8.02
(a)(2) ............................. 8.02
(b) ................................ 6.03
Section 318 (a) ................................ 13.08
</TABLE>
II-10
<PAGE> 4
<TABLE>
<CAPTION>
Table of Contents(2)
---------------------
Page
----
<S> <C>
Recitals ............................................................................................... 1
Form of Face of Security ...................................................................... 1
Form of Reverse of Security ................................................................... 3
Form of Trustee's Certificate Of
Authentication for Securities ................................................................. 8
Form of Legend for Global Securities .......................................................... 8
Article I. Definitions ................................................................................. 9
Section 1.01. Certain Terms Defined ........................................................... 9
Act .................................................................................. 9
Affiliate ............................................................................ 9
Authenticating Agent ................................................................. 10
Board of Directors ................................................................... 10
Board Resolution ..................................................................... 10
Business Day ......................................................................... 10
Capital Lease ........................................................................ 10
Capital Lease Obligation ............................................................. 10
Commission ........................................................................... 11
Common Stock ......................................................................... 11
Company .............................................................................. 11
Company Request or Company Order ..................................................... 11
Consolidated Net Tangible Assets ..................................................... 11
Corporate Trust Office ............................................................... 11
Covenant Defeasance .................................................................. 12
Default .............................................................................. 12
Defaulted Interest ................................................................... 12
Defeasance ........................................................................... 12
Defeasible Series .................................................................... 12
Depositary ........................................................................... 12
Event of Default ..................................................................... 12
Exchange Act ......................................................................... 13
Funded Debt .......................................................................... 13
GAAP ................................................................................. 13
Global Security ...................................................................... 13
Holder ............................................................................... 13
Indebtedness ......................................................................... 13
Indenture ............................................................................ 14
Interest ............................................................................. 15
Interest Payment Date ................................................................ 15
Material Adverse Effect .............................................................. 15
<FN>
_______________________
(2) The Table of Contents is not part of the Indenture.
</TABLE>
II-11
<PAGE> 5
<TABLE>
<S> <C> <C>
Maturity ............................................................................. 15
Notice of Default .................................................................... 15
Officer's Certificate ................................................................ 15
Opinion of Counsel ................................................................... 15
Original Issue Discount Security ..................................................... 16
Outstanding .......................................................................... 16
Paying Agent ......................................................................... 17
Person ............................................................................... 17
Place of Payment ..................................................................... 17
Predecessor Security ................................................................. 17
Principal Property ................................................................... 18
Redemption Date ...................................................................... 18
Redemption Price ..................................................................... 18
Regular Record Date .................................................................. 18
Responsible Officer .................................................................. 18
Restricted Subsidiary ................................................................ 19
Sale and Leaseback Transaction ....................................................... 19
Secured Debt ......................................................................... 19
Securities ........................................................................... 19
Security Register and Security Registrar ............................................. 19
Special Record Date .................................................................. 19
Stated Maturity ...................................................................... 19
Subsidiary ........................................................................... 20
Trust Indenture Act .................................................................. 20
Trustee .............................................................................. 20
U.S. Government Obligation ........................................................... 20
Vice President ....................................................................... 21
Article II. The Securities ............................................................................ 21
Section 2.01. Designation and Amount of Securities ............................................ 21
Section 2.02. Form of Securities and Trustee's
Certificate of Authentication ............................................... 23
Section 2.03. Date and Denominations .......................................................... 24
Section 2.04. Execution, Authentication and
Delivery of Securities ...................................................... 24
Section 2.05. Registration of Transfer and Exchange .......................................... 26
Section 2.06. Temporary Securities ............................................................ 28
Section 2.07. Mutilated, Destroyed, Lost, and Stolen
Securities .......................................................................... 28
Section 2.08. Cancellation of Surrendered Securities .......................................... 29
Section 2.09. Payment of Interest; Interest Rights
Preserved ........................................................................... 30
Section 2.10. Persons Deemed Owners ........................................................... 31
Section 2.11. Computation of Interest ......................................................... 32
Section 2.12. CUSIP Numbers ................................................................... 32
Article III. Redemption of Securities .................................................................. 32
Section 3.01. Applicability of Article ........................................................ 32
Section 3.02. Election to Redeem; Notice to Trustee ........................................... 32
Section 3.03. Deposit of Redemption Price ..................................................... 33
</TABLE>
II-12
<PAGE> 6
<TABLE>
<S> <C>
Section 3.04. Securities Payable on Redemption Date ........................................... 34
Section 3.05. Securities Redeemed in Part ..................................................... 34
Article IV. Sinking Funds ............................................................................. 35
Section 4.01. Applicability of Article ........................................................ 35
Section 4.02. Satisfaction of Sinking Fund Payments
With Securities ..................................................................... 35
Section 4.03. Redemption of Securities for Sinking Fund ....................................... 35
Article V. Defeasance and Covenant Defeasance ........................................................ 36
Section 5.01. Company's Option to Effect Defeasance
or Covenant Defeasance .............................................................. 36
Section 5.02. Defeasance and Discharge ........................................................ 36
Section 5.03. Covenant Defeasance ............................................................. 37
Section 5.04. Conditions to Defeasance or
Covenant Defeasance ................................................................. 37
Section 5.05. Deposited Money and U.S. Government
Obligations to be Held in Trust; Other
Miscellaneous Provisions............................................................ 39
Section 5.06. Reinstatement ................................................................... 40
Article VI. Particular Covenants of the Company ....................................................... 40
Section 6.01. Payment of Principal, Premium and
Interest on Securities .............................................................. 40
Section 6.02. Maintenance of Office or Agency ................................................. 41
Section 6.03. Money for Securities Payments to
be Held in Trust .................................................................... 41
Section 6.04. Payment of Taxes and Other Claims ............................................... 42
Section 6.05. Maintenance of Properties ....................................................... 43
Section 6.06. Existence ....................................................................... 43
Section 6.07. Compliance with Laws ............................................................ 43
Section 6.08. Statement by Officers as to Default ............................................. 44
Section 6.09. Waiver of Certain Covenants ..................................................... 44
Section 6.10. Limitations of Liens ............................................................ 44
Section 6.11. Limitations on Sale and Leaseback Transactions .................................. 46
Article VII. Securities Holders' Lists And Reports By
The Company And The Trustee ....................................................... 46
Section 7.01. Company to Furnish Trustee Names and
Addresses of Holders ........................................................ 46
Section 7.02. Preservation of Information;
Communication to Holders .................................................... 46
Section 7.03. Reports by Trustee .............................................................. 47
Section 7.04. Reports by Company .............................................................. 47
Article VIII. Default ................................................................................. 48
Section 8.01. Event of Default ................................................................ 48
</TABLE>
II-13
<PAGE> 7
<TABLE>
<S> <C>
Section 8.02. Covenant of Company to Pay to Trustee
Whole Amount Due on Securities on Default
in Payment of Interest or Principal; Suits
for Enforcement by Trustee .................................................. 51
Section 8.03. Application of Money Collected by
Trustee ..................................................................... 52
Section 8.04. Limitation on Suits by Holders of
Securities .................................................................. 53
Section 8.05. Rights and Remedies Cumulative; Delay
or Omission in Exercise of Rights not a
Waiver of Event of Default .................................................. 54
Section 8.06. Rights of Holders of Majority in
Principal Amount of Outstanding Securities
to Direct Trustee ........................................................... 54
Section 8.07. Requirement of an Undertaking to Pay
Costs in Certain Suits Under the Indenture
or Against the Trustee ...................................................... 54
Section 8.08. Notice of Defaults .............................................................. 55
Section 8.09. Unconditional Right of Holders to
Receive Principal, Premium, and Interest .................................... 55
Section 8.10. Restoration of Rights and Remedies .............................................. 55
Section 8.11. Trustee May File Proofs of Claims ............................................... 55
Article IX. Concerning the Trustee ..................................................................... 56
Section 9.01. Certain Duties and Responsibilities ............................................. 56
Section 9.02. Certain Rights of Trustee ....................................................... 56
Section 9.03. Not Responsible for Recitals or
Issuance of Securities .......................................................... 57
Section 9.04. May Hold Securities ............................................................. 58
Section 9.05. Money Held in Trust ............................................................. 58
Section 9.06. Compensation and Reimbursement .................................................. 58
Section 9.07. Disqualification; Conflicting
Interests ....................................................................... 58
Section 9.08. Corporate Trustee Required
Eligibility...................................................................... 59
Section 9.09. Resignation and Removal; Appointment
of Successor..................................................................... 59
Section 9.10. Acceptance of Appointment by
Successor........................................................................ 61
Section 9.11. Merger, Conversion, Consolidation,
or Succession to Business........................................................ 62
Section 9.12. Preferential Collection of Claims
Against Company.................................................................. 62
Section 9.13. Appointment of Authenticating
Agent............................................................................ 63
</TABLE>
II-14
<PAGE> 8
<TABLE>
<S> <C>
Section 9.14. Trustee's Application for Instruction
from the Company........................................................ 65
Article X. Supplemental Indentures And Certain
Actions...................................................................................... 65
Section 10.01. Purposes for Which Supplemental
Indentures May Be Entered Into
Without Consent of Holders.................................................. 65
Section 10.02. Modification of Indenture With
Consent of Holders of at Least a
Majority in Principal Amount of
Outstanding Securities ..................................................... 66
Section 10.03. Execution of Supplemental Indentures............................................ 68
Section 10.04. Effect of Supplemental Indentures............................................... 68
Section 10.05. Conformity with Trust Indenture Act............................................. 68
Section 10.06. Reference in Securities to Supplemental
Indentures.................................................................. 68
Article XI. Consolidation, Merger, Sale, or Transfer.................................................... 69
Section 11.01. Consolidations and Mergers of
Company and Sales Permitted Only
on Certain Terms ........................................................... 69
Article XII. Satisfaction and Discharge of Indenture ................................................... 69
Section 12.01. Satisfaction and Discharge of Indenture ........................................ 69
Section 12.02. Application of Trust Money ..................................................... 70
Article XIII. Miscellaneous Provisions ................................................................. 70
Section 13.01. Successors and Assigns of Company Bound
by Indenture ............................................................... 70
Section 13.02. Service of Required Notice to
Trustee and Company ........................................................ 71
Section 13.03. Service of Required Notice to
Holders; Waiver ............................................................ 71
Section 13.04. Indenture and Securities to be
Construed in Accordance with the Laws
of the State of New York ................................................... 72
Section 13.05. Compliance Certificates and Opinions ........................................... 72
Section 13.06. Form of Documents Delivered to Trustee ......................................... 72
Section 13.07. Payments Due on Non-Business Days .............................................. 72
Section 13.08. Provisions Required by Trust Indenture
Act to Control ............................................................. 73
Section 13.09. Invalidity of Particular Provisions ............................................ 73
Section 13.10. Indenture May be Executed In
Counterparts ............................................................... 73
</TABLE>
II-15
<PAGE> 9
<TABLE>
<S> <C>
Section 13.11. Acts of Holders; Record Dates .................................................. 73
Section 13.12. Effect of Headings and Table of
Contents ................................................................... 76
Section 13.13. Benefits of Indenture .......................................................... 76
</TABLE>
II-16
<PAGE> 10
Indenture, dated as of December 15, 1997 between Dana Corporation, a
corporation duly organized and existing under the laws of the Commonwealth of
Virginia (the "Company"), and Citibank, N.A., a national banking association,
duly incorporated and existing under the laws of the United States of America
(herein called the "Trustee").
RECITALS
A. The Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes, and other evidences of indebtedness (the "Securities"), to be
issued in one or more series as in this Indenture provided.
B. The Securities of each series will be in substantially the
form set forth below, or in such other form as may be established by or pursuant
to a Board Resolution or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions, and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers, or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities.
[Form of Face of Security]
[Insert any legend required by the Internal
Revenue Code and the regulations thereunder.]
DANA CORPORATION
CUSIP No. _______
No.R- $___________
Dana Corporation, a corporation duly organized and existing
under the laws of the Commonweath of Virginia (hereinafter called the
"Company", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
_____________________, or registered assigns, the principal sum of $_________
on ______________ [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, on
______________ and ______________ in each year, commencing on ____________, at
the rate of % per annum, until the principal hereof is paid or made available
for payment [IF APPLICABLE, INSERT: ", and at the rate of _% per annum on any
overdue principal and premium and on any overdue installment of interest"]. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in
whose
II-17
<PAGE> 11
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 will be
the ___________ or ______________ (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof will be given to Holders of
Securities of this series not less than 10 calendar days prior to such Special
Record Date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Securities of this
series 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 will 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 will
bear interest at the rate of _% per annum which will 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 will be payable on demand.
Any such interest on any overdue principal that is not so paid on demand will
bear interest at the rate of _% per annum which will 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 will also be payable on demand."
Payment of the principal of (and premium, if any) and [IF
APPLICABLE, INSERT: "any such "1] interest on this Security will be made at the
office or agency of the Company maintained for the purpose in
___________________, 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: "; PROVIDED, HOWEVER that at the option of the Company
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address appears in the Security Register"].
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS SET FORTH
ON THE REVERSE HEREOF. SUCH PROVISIONS WILL FOR ALL PURPOSES HAVE THE SAME
EFFECT AS THOUGH FULLY SET FORTH IN THIS PLACE.
This Security will not be valid or become obligatory for any
purpose until the certificate of authentication herein has been signed manually
by the Trustee under the Indenture referred to on the reverse side hereof.
IN WITNESS WHEREOF, THIS INSTRUMENT HAS BEEN DULY EXECUTED IN
ACCORDANCE WITH THE INDENTURE.
II-18
<PAGE> 12
DANA CORPORATION
By:___________________________
Attest:
By:_________________________
[Form of Reverse of Security]
DANA CORPORATION
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities") and to be issued in one or more
series under an Indenture, dated as __________, 1997 (herein called the
"Indenture "), between the Company and Citibank, N.A., as Trustee (herein called
the "Trustee ", which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties,
and immunities thereunder of the Company, the Trustee, and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof if applicable insert: ", limited in aggregate principal amount
to $___"].
[IF APPLICABLE, INSERT: "The Securities of this series are
subject to redemption upon not less than 30 calendar days' notice by mail, [IF
APPLICABLE, INSERT: "(a) on __________ in each 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
(b)"] at any time [IF APPLICABLE INSERT: "on or after _____, ___"], as a whole
or in part, at the election of the Company, at the following Redemption Prices
(expressed as percentages of the principal amount): If redeemed [IF APPLICABLE,
INSERT: "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
II-19
<PAGE> 13
installments whose Stated Maturity is on or prior to such Redemption Date will
be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates
referred to on the face hereof, all as provided in the Indenture."].
[IF APPLICABLE, INSERT: "The Securities of this series are
subject to redemption upon not less than 30 calendar days' notice by mail, [IF
APPLICABLE, INSERT: "(a) on ___________ in each year commencing with the year
____ and ending with the year ____ through operation of the sinking fund for
this series at the following Redemption Prices (expressed as percentages of the
principal amount) applicable to redemption through operation of the sinking fund
and (b)"] at any time [IF APPLICABLE, INSERT: "on or after __________, ___"] as
a whole or in part, at the election of the Company, at the following Redemption
Prices (expressed as percentages of the principal amount) applicable to
redemption otherwise than through operation of the sinking fund: If redeemed [IF
APPLICABLE, INSERT: "on or before , __%, and if redeemed"] during the 12-month
period beginning ______ of the years indicated,
Redemption Price For Redemption Price 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 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: Notwithstanding the foregoing, the
Company may not, prior to _ redeem any Securities of this series as contemplated
by [IF APPLICABLE, INSERT: "Clause (b) of"] the preceding paragraph as a part
of, or in anticipation of, any refunding operation by the application, directly
or indirectly, of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted financial practice) of less
than _% per annum."]
[IF APPLICABLE INSERT: "The sinking fund for this series
provides for the redemption on ____________ in each year beginning with the year
____ and ending with the year ____ of [IF APPLICABLE, INSERT: "not less than
$________ ("mandatory sinking fund ") and not more than "] $________ aggregate
principal amount of Securities of this series.
II-20
<PAGE> 14
Securities of this series acquired or redeemed by the Company otherwise than
through [IF APPLICABLE, INSERT: "mandatory "] sinking fund payments may be
credited against subsequent [IF APPLICABLE, INSERT: "mandatory "] sinking fund
payments otherwise required to be made [IF APPLICABLE, INSERT: "in the inverse
order in which they become due"]."].
[IF THE SECURITY IS SUBJECT TO REDEMPTION OF ANY KIND. insert:
"In the event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor 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 (a) the entire indebtedness evidenced by this Security
or (b) 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 AN ORIGINAL ISSUE DISCOUNT SECURITY,
INSERT: "If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture."]
[IF THE SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY,
INSERT: "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 will be equal to [INSERT FORMULA FOR DETERMINING THE
AMOUNT] . Upon payment (a) of the amount of principal so declared due and
payable and (b) of interest on any overdue principal and overdue interest, all
of the Company's obligations in respect of the payment of the principal of and
interest, if any, on the Securities of this series will terminate."]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount of
the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security will 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 herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
As provided in and subject to the provisions of the Indenture,
the Holder of this Security will not have the right to institute any proceeding
with respect to the Indenture
II-21
<PAGE> 15
or for the appointment of a receiver or trustee or for any other remedy
thereunder, unless such Holder shall have previously given the Trustee written
notice of a continuing Event of Default with respect to the Securities of this
series, the Holders of not less than 25% in principal amount of the Securities
of this series at the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default as Trustee
and offered the Trustee reasonable indemnity, and the Trustee shall not have
received from the Holders of a majority in principal amount of Securities of
this series at the time Outstanding a direction inconsistent with such request
and shall have failed to institute such proceeding for 60 calendar days after
receipt of such notice, request, and offer of indemnity. The foregoing will
apply to any suit instituted by the Holder of this Security for the enforcement
of any payment of principal hereof or any premium or interest hereon on or after
the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this
Security or of the Indenture will alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place, and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registerable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the principal
of and any premium and interest on this Security are payable, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered
form without coupons in denominations of $1,000 and integral multiples thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee, and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security shall be overdue, and
neither the Company, the Trustee, nor any such agent will be affected by notice
to the contrary.
II-22
<PAGE> 16
All terms used in this Security that are defined in the
Indenture will have the respective meanings assigned to them in the Indenture.
C. The Trustee's certificate of authentication will be in
substantially the following form:
[Form of Trustee's Certificate Of
Authentication for Securities]
Trustee's Certificate of Authentication
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Citibank, N.A.,
as Trustee
Dated:_____________ By:_______________________
Authorized Signatory
D. Every Global Security authenticated and delivered hereunder
will bear a legend in substantially the following form:
[Form of Legend for Global Securities]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR
EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE
DEPOSITARY OR A NOMINEE THEREOF, AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY
AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE
FOR, OR IN LIEU OF, THIS SECURITY WILL BE A GLOBAL SECURITY SUBJECT TO THE
FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
E. All acts and things necessary to make the Securities, when
the Securities have been executed by the Company and authenticated by the
Trustee and delivered as provided in this Indenture, the valid, binding, and
legal obligations of the Company and to constitute these presents a valid
indenture and agreement according to its terms, have been done and performed,
and the execution and delivery by the Company of this
II-23
<PAGE> 17
Indenture and the issue hereunder of the Securities have in all respects been
duly authorized; and the Company, in the exercise of legal right and power in it
vested, is executing and delivering this Indenture and proposes to make,
execute, issue, and deliver the Securities.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
In order to declare the terms and conditions upon which the
Securities are authenticated, issued, and delivered, and in consideration of the
premises and of the purchase and acceptance of the Securities by the Holders
thereof, it is mutually agreed, for the equal and proportionate benefit of the
respective Holders from time to time of the Securities or of a series thereof,
as follows:
ARTICLE I.
DEFINITIONS
Section 1.01. Certain Terms Defined.
(a) The terms defined in this Section 1.01 (except as herein
otherwise expressly provided or unless the context of this Indenture otherwise
requires) for all purposes of this Indenture and of any indenture supplemental
hereto have the respective meanings specified in this Section 1.01. All other
terms used in this Indenture that are defined in the Trust Indenture Act, either
directly or by reference therein (except as herein otherwise expressly provided
or unless the context of this Indenture otherwise requires), have the respective
meanings assigned to such terms in the Trust Indenture Act as in force at the
date of this Indenture as originally executed.
Act:
- ----
The term "Act", when used with respect to any Holder, has the
meaning set forth in Section 13.11.
Affiliate:
----------
The term "Affiliate" means, with respect to a particular
Person, any Person that, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person. For purposes of this
definition, control of a Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative of the foregoing.
Authenticating Agent:
- ---------------------
II-24
<PAGE> 18
The term "Authenticating Agent" means any Person authorized by
the Trustee pursuant to Section 9.13 to act on behalf of the Trustee to
authenticate Securities of one or more series.
Board of Directors:
- -------------------
The term "Board of Directors" means the Board of Directors of
the Company or a duly authorized committee of such Board.
Board Resolution:
- -----------------
The term "Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
Business Day:
- -------------
The term "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 required by law or executive order to close.
Capital Lease:
- --------------
The term "Capital Lease" means, with respect to any Person,
any lease of property (whether real, personal, or mixed) by such Person or its
Subsidiaries as lessee that would be capitalized on a balance sheet of such
Person or its Subsidiaries prepared in conformity with GAAP, other than, in the
case of such Person or its Subsidiaries, any such lease under which such Person
or any of its Subsidiaries is the lessor.
Capital Lease Obligations:
- --------------------------
The term "Capital Lease Obligations" means, with respect to
any Person, the capitalized amount of all obligations of such Person and its
Subsidiaries under Capital Leases, as determined on a consolidated basis in
conformity with GAAP.
Commission:
- -----------
The term "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.
II-25
<PAGE> 19
Common Stock:
- -------------
The term "Common Stock" means the common stock of the Company.
Company:
- --------
The term "Company" means Dana Corporation, a Virginia
corporation, until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company " will mean
such successor Person.
Company Request or Company Order:
- ---------------------------------
The term "Company Request " or "Company Order" means a written
request or order signed in the name of the Company by the Chairman of the Board
of Directors, the Vice Chairman of the Board of Directors, the President, a Vice
President, the Treasurer, an Assistant Treasurer, the Secretary, or an Assistant
Secretary of the Company, and delivered to the Trustee.
Consolidated Net Tangible Assets:
- ---------------------------------
The term "Consolidated Net Tangible Assets" means the total
assets (less applicable reserved and other properly deductible items) on the
balance sheet of the Company and its consolidated Subsidiaries for the most
recent fiscal quarter, less (i) all current liabilities and (ii) goodwill,
trade names, patents, organization expenses and other like intangibles of the
Company and its consolidated Subsidiaries.
Corporate Trust Office:
- -----------------------
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date hereof is located at 111 Wall Street 5th
Floor, New York, New York 10043, Attention: Corporate Agency and Trust
Department, or such other address as the Trustee may designate form time to time
by notice to the Holders and the Company, or the principal corporate trust
office of any successor Trustee (or such other address as successor Trustee may
designate from time to time by notice to the Holders and the Company).
Covenant Defeasance:
- --------------------
The term "Covenant Defeasance " has the meaning set forth in
Section 5.03.
Default:
- --------
II-26
<PAGE> 20
The term "Default" means any event which, with notice or
passage of time or both, would constitute an Event of Default.
Defaulted Interest:
- -------------------
The term "Defaulted Interest" has the meaning set forth in
Section 2.09.
Defeasance:
- -----------
The term "Defeasance" has the meaning set forth in Section
5.02.
Defeasible Series:
- ------------------
The term "Defeasible Series" has the meaning set forth in
Section 5.01.
Depositary:
- -----------
The term Depositary" means, with respect to Securities of any
series issuable in whole or in part in the form of one or more Global
Securities, a clearing agency registered under the Exchange Act that is
designated to act as Depositary for such Securities as contemplated by Section
2.01.
Event of Default:
- -----------------
The term "Event of Default" has the meaning set forth in
Section 8.01(a).
Exchange Act:
- -------------
The term "Exchange Act " means the Securities Exchange Act of
1934, as amended, or any similar federal statute, and the rules and regulations
of the Commission thereunder, as the same may be in effect from time to time.
Funded Debt:
- ------------
The term "Funded Debt" means indebtedness for borrowed money
owed or guaranteed by the Company or any consolidated Restricted Subsidiary,
and any other indebtedness which under generally accepted accounting principles
would appear as debt on the consolidated balance sheet of the Company, which
matures by its terms more than twelve months from the date as of which Funded
debt is to be determined or is extendible or renewable at the option of the
obligor to a date more than twelve months from the date as of which Funded Debt
is to be determined.
GAAP:
- -----
II-27
<PAGE> 21
The term "GAAP " means generally accepted accounting
principles in the United States of America as in effect from time to time set
forth in the opinions and pronouncements of the Accounting Principles Board and
The American Institute of Certified Public Accountants and the statements and
pronouncements of the Financial Accounting Standards Board, or in such other
statements by any successor entity as may be in general use by significant
segments of the accounting profession, which are applicable to the circumstances
as of the date of determination.
Global Security:
- ----------------
The term "Global Security" means a Security that evidences all
or part of the Securities of any series and is authenticated and delivered to,
and registered in the name of, the Depositary for such Securities or a nominee
thereof.
Holder:
- -------
The term "Holder" means a person in whose name a particular
Security is registered in the Security Register.
Indebtedness:
- -------------
The term "Indebtedness" means, as applied to any Person,
without duplication: (a) all obligations of such Person for borrowed money; (b)
all obligations of such Person for the deferred purchase price of property or
services (other than property and services purchased, and expense accruals and
deferred compensation items arising, in the ordinary course of business); (c)
all obligations of such Person evidenced by notes, bonds, debentures,
mandatorily redeemable preferred stock, or other similar instruments (other than
performance, surety, and appeals bonds arising in the ordinary course of
business); (d) all payment obligations created or arising under any conditional
sale, deferred price, or other title retention agreement with respect to
property acquired by such Person (unless the rights and remedies of the seller
or lender under such agreement in the event of default are limited to
repossession or sale of such property); (e) any Capital Lease Obligation of such
Person; (f) all reimbursement, payment, or similar obligations, contingent or
otherwise, of such Person under acceptance, letter of credit, or similar
facilities (other than letters of credit in support of trade obligations or
incurred in connection with public liability insurance, workers compensation,
unemployment insurance, old-age pensions, and other social security benefits
other than in respect of employee benefit plans subject to ERISA); (g) all
obligations of such Person, contingent or otherwise, under any guarantee by such
Person of the obligations of another Person of the type referred to in clauses
(a) through (f) above; and (h) all obligations referred to in clauses (a)
through (f) above secured by (or for which the holder of such Indebtedness has
an existing right, contingent or otherwise, to be secured by) any mortgage or
security interest in property (including without limitation accounts, contract
rights, and general intangibles) owned by such Person and as to which such
Person has not assumed or become liable for the payment of such obligations
other than to the extent of the property subject to such
II-28
<PAGE> 22
mortgage or security interest; provided, however, that Indebtedness of the type
referred to in clauses (g) and (h) above shall be included within the definition
of "Indebtedness " only to the extent of the least of: (i) the amount of the
underlying Indebtedness referred to in the applicable clause (a) through (f)
above; (ii) in the case of clause (g), the limit on recoveries, if any, from
such Person under obligations of the type referred to in clause (g) above; and
(iii) in the case of clause (h), the aggregate value (as determined in good
faith by the Board of Directors) of the security for such Indebtedness.
Indenture:
- ----------
The term "Indenture" means this Indenture, as this Indenture
may be amended, supplemented, or otherwise modified from time to time,
including, for all purposes of this Indenture and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" will also include the terms of particular
series of Securities established as contemplated by Section 2.01.
Interest:
- ---------
The term "Interest, " (i) when used with respect to an
Original Issue Discount Security which by its terms bears interest only after
Maturity, means interest which accrues from and after and is payable after
Maturity and (ii) when used with respect to any Security, means the amount of
all interest accruing on such Security, including any Defaulted Interest and any
interest accruing after any Event of Default that would have accrued but for the
occurrence of such Event of Default, whether or not a claim for such interest
would be otherwise allowable under applicable law.
Interest Payment Date:
- ----------------------
The term "Interest Payment Date," when used with respect to
any Security, means the Stated Maturity of an installment of interest on such
Security.
Material Adverse Effect:
- ------------------------
The term "Material Adverse Effect" means a material adverse
effect on the business, assets, financial condition or results of operations of
the Company and its Subsidiaries taken as a whole.
Maturity:
- ---------
The term "Maturity," when used with respect to any Security,
means the date on which the principal of that 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.
II-29
<PAGE> 23
Notice of Default:
- ------------------
The term "Notice of Default" means a written notice of the
kind set forth in Section 8.01(a)(iv).
Officer's Certificate:
- ----------------------
The term "Officer's Certificate " means a certificate executed
on behalf of the Company by a Responsible Officer, and delivered to the Trustee.
Opinion of Counsel:
- -------------------
The term "Opinion of Counsel " means an opinion in writing
signed by legal counsel, who, subject to any express provisions hereof, may be
an employee of or counsel for the Company or any Subsidiary, reasonably
acceptable to the Trustee.
Original Issue Discount Security:
- ---------------------------------
The term "Original Issue Discount Security " means any
Security which provides for an amount less than the principal amount thereof to
be due and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 8.01(b).
Outstanding:
- ------------
The term "Outstanding " means, when used with reference to
Securities as of a particular time, all Securities theretofore issued by the
Company and authenticated and delivered by the Trustee under this Indenture,
except (a) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation, (b) Securities for the payment or redemption of which
money in the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company is acting as its own Paying Agent) for
the Holders of such Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made, and
(c) Securities 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 Company; 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, (i) the
principal amount of an Original Issue Discount Security that will be deemed to
be Outstanding will be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof to such date pursuant to Section 8.01(b), (ii) the principal amount of a
Security denominated in one or more foreign currencies or currency
II-30
<PAGE> 24
units will be the U.S. dollar equivalent, determined in the manner contemplated
by Section 2.01 on the date of original issuance of such Security, of the
principal amount (or, in the case of an Original Issue Discount Security, the
U.S. dollar equivalent on the date of original issuance of such Security of the
amount determined as provided in clause (i) above) of such Security, and (iii)
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor will be disregarded and deemed
not to be Outstanding, except that, in determining whether the Trustee will be
protected in relying upon any such request, demand, authorization, direction,
notice, consent, or waiver, only Securities which a Responsible Officer of the
Trustee actually knows to be so owned will be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgor establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the Company
or of such other obligor.
Paying Agent:
- -------------
The term "Paying Agent " means any Person authorized by the
Company to pay the principal of or any premium or interest on any Securities on
behalf of the Company.
Person:
- -------
The term "Person " means any individual, partnership,
corporation, joint stock company, business trust, trust, unincorporated
association, joint venture, or other entity, or government or political
subdivision or agency thereof.
Place of Payment:
- -----------------
The term "Place of Payment, " when used with respect to the
Securities of any series, means the place or places where the principal of and
any premium and interest on the Securities of that series are payable as
specified as contemplated by Section 2.01.
Predecessor Security:
- ---------------------
The term "Predecessor Security," when used with respect to any
particular Security, means every previous Security evidencing all or a portion
of the same debt as that evidenced by such Security; and, for the purposes of
this definition, any Security authenticated and delivered under Section 2.07 in
exchange for or in lieu of a mutilated, destroyed, lost, or stolen Security will
be deemed to evidence the same debt as the mutilated, destroyed, lost, or stolen
Security.
Principal Property:
- -------------------
II-31
<PAGE> 25
The term "Principal Property" means any real property
(including building and other improvements) of the Company or any Restricted
Subsidiary, owned currently or hereafter acquired (other than any pollution
control facility, cogeneration facility or small power production facility)
which has a book value in excess of 2% of Consolidated Net Tangible Assets.
Redemption Date:
- ----------------
The term "Redemption Date," when used with respect to any
Security to be redeemed, means the date fixed for such redemption by or pursuant
to this Indenture.
Redemption Price:
- -----------------
The term "Redemption Price," when used with respect to any
Security to be redeemed, means the price (including premium, if any) at which it
is to be redeemed pursuant to this Indenture.
Regular Record Date:
- --------------------
The term "Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of any series means the date specified
for that purpose as contemplated by Section 2.01.
Responsible Officer:
- --------------------
The term "Responsible Officer," when used (a) with respect to
the Company, means the Chairman, the Deputy Chairman, the Vice Chairman, the
President, a Vice President, the Treasurer, an Assistant Treasurer, the
Secretary, or an Assistant Secretary of the Company and (b) with respect to the
Trustee, means the chairman or any vice-chairman of the board of directors, the
chairman or any vice-chairman of the executive committee of the board of
directors, the chairman of the trust committee, the president, any vice
president, any assistant vice president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, the cashier, any assistant
cashier, any senior trust officer, any trust officer or assistant trust
officer, the controller or any assistant controller or any other officer of the
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowlege of and familiarity with the particular subject.
Restricted Subsidiary:
- ----------------------
The term "Restricted Subsidiary" means any Subsidiary of the
Company other than an "Unrestricted Subsidiary." An "Unrestricted Subsidiary"
means any Subsidiary designated as such from time to time by the Board of
Directors of the Company.
Sale and Leaseback Transaction:
- -------------------------------
The term "Sale and Leaseback Transaction" means any
farrangement with any person or entity providing for the leasing by the Company
or any Restricted Subsidiary of any Principal Property whereby such Principal
Property has been or is to be sold or transferred by the Company or a Restricted
Subsidiary to such person or entity; provided,
II-32
<PAGE> 26
however, that the foregoing shall not apply to any such arrangement involving a
lease for a term, including renewal rights, of not more than three years.
Secured Debt:
- -------------
The term "Secured Debt" means indebtedness (other than
indebtedness among the Company and Restricted Subsidiaries) for money borrowed,
or other indebtedness on which interest is paid or payable, which is secured by
(i) a lien on any Principal Property of the Company or a Restricted Subsidiary
or on the stock or indebtedness of a Restricted Subsidiary, or (ii) any
guarantee of indebtedness of the Company by a Restricted Subsidiary.
Securities:
- -----------
The term "Securities" has the meaning set forth in the first
recital of this Indenture and more particularly means any Securities
authenticated and delivered under this Indenture.
Security Register and Security Registrar:
- -----------------------------------------
The terms "Security Register" and "Security Registrar" have
the respective meanings set forth in Section 2.05.
Special Record Date:
- --------------------
The term "Special Record Date" for the payment of any
Defaulted Interest means a date fixed by the Trustee pursuant to Section 2.09.
Stated Maturity:
- ----------------
The term "Stated Maturity," when used with respect to any
Security, any installment of interest thereon, or any other amount payable under
this Indenture or the Securities, means the date specified in this Indenture or
such Security as the regularly scheduled date on which the principal of such
Security, such installment of interest, or such other amount, is due and
payable.
Subsidiary:
- -----------
The term "Subsidiary " means, as applied with respect to any
Person, any corporation, partnership, or other business entity of which, in the
case of a corporation, more than 50% of the issued and outstanding capital stock
having ordinary voting power to elect a majority of the board of directors of
such corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation has or might have voting power upon the
occurrence of any contingency), or, in the case of any partnership
II-33
<PAGE> 27
or other legal entity, more than 50% of the ordinary equity capital interests,
is at the time directly or indirectly owned or controlled by such Person, by
such Person and one or more of its other Subsidiaries, or by one or more of such
Person's other Subsidiaries.
Trust Indenture Act:
- --------------------
The term "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; 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.
Trustee:
- --------
The term "Trustee" means the Person named as the "Trustee" in
the first paragraph of this Indenture until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" will mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, "Trustee" as
used with respect to the Securities of any series will mean each Trustee with
respect to Securities of that series.
U.S. Government Obligation:
- ---------------------------
The term "U.S. Government Obligation" means (a) any security
that is (i) a direct obligation of the United States of America for the payment
of which full faith and credit of the United States of America is pledged or
(ii) an obligation of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America the payment of which
is unconditionally guaranteed as a full faith and credit obligation by the
United States of America, which, in either case (i) or (ii), is not callable or
redeemable at the option of the issuer thereof and (b) any depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933,
as amended) as custodian with respect to any U.S. Government Obligation
specified in clause (a), which U.S. Government Obligation is held by such
custodian for the account of the holder of such depositary receipt, or with
respect to any specific payment of principal of or interest on any such U.S.
Government Obligation, provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder of
such depositary receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of principal or interest
evidenced by such depositary receipt.
Vice President:
- ---------------
The term "Vice President," when used with respect to the
Company or the Trustee, means any vice president, whether or not designated by a
number or a word or words added before or after the title "vice president."
II-34
<PAGE> 28
(b) The words "Article" and "Section" refer to an Article and
Section, respectively, of this Indenture. The words "herein", "hereof," and
"hereunder" and other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section, or other subdivision. Certain terms
used principally in Articles V, VI, and IX are defined in those Articles. Terms
in the singular include the plural and terms in the plural include the singular.
ARTICLE II.
THE SECURITIES.
Section 2.01. Designation and Amount of Securities.
(a) The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited.
(b) The Securities may be issued in one or more series. There
will be established in or pursuant to a Board Resolution and, subject to Section
2.04, set forth or determined in the manner provided in an Officer's
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series: (i) the title of the Securities of
the series (which will distinguish the Securities of the series from Securities
of any other series); (ii) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in the exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.05, 2.06, 2.07, 3.05, or 10.06 and except for any
Securities which, pursuant to Section 2.04, are deemed never to have been
authenticated and delivered hereunder); (iii) the Person to whom any interest on
a Security of the series will be payable, if other than the Person in whose name
that Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest; (iv) the date or dates
on which the principal of the Securities of the series is payable; (v) the rate
or rates at which the Securities of the series will bear interest, if any, the
date or dates from which such interest will accrue, the Interest Payment Dates
on which any such interest will be payable, and the Regular Record Date for any
interest payable on any Interest Payment Date; (vi) the place or places where
the principal of and any premium and interest on Securities of the series will
be payable; (vii) the period or periods within which, the price or prices at
which, and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company; (viii) the
obligation, if any, of the Company to redeem or purchase Securities of the
series pursuant to any sinking fund or analogous provisions or at the option of
a Holder thereof and the period or periods within which, the price or prices at
which, and the terms and conditions upon which Securities of the series will be
redeemed or purchased, in whole or in part, pursuant to such obligation; (ix) if
other than denominations of $1,000 and integral multiples thereof, the
denominations in which Securities of the series will be issuable; (x) the
currency, currencies, or currency units in which payment of the principal of and
any premium and
II-35
<PAGE> 29
interest on any Securities of the series will be payable if other than the
currency of the United States of America and the manner of determining the
equivalent thereof in the currency of the United States of America for purposes
of the definition of "Outstanding" in Section 1.01; (xi) if the amount of
payments of principal of or any premium or interest on any Securities of the
series may be determined with reference to an index, based upon a formula, or in
some other manner, the manner in which such amounts will be determined; (xii) if
the principal of or any premium or interest on any Securities of the series is
to be payable, at the election of the Company or a Holder thereof, in one or
more currencies or currency units other than that or those in which the
Securities are stated to be payable, the currency, currencies, or currency units
in which payment of the principal of and any premium and interest on Securities
of such series as to which such election is made will be payable, and the
periods within which and the terms and conditions upon which such election is to
be made; (xiii) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which will be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 8.01(b);
(xiv) if applicable, that the Securities of the series will be subject to either
or both of Defeasance or Covenant Defeasance as provided in Article V, provided
that no series of Securities that is convertible into Common Stock pursuant to
Section 2.01(b)(xvi) or convertible into or exchangeable for any other
securities pursuant to Section 2.01(b)(xvii) will be subject to Defeasance
pursuant to Section 5.02; (xv) if and as applicable, that the Securities of the
series will be issuable in whole or in part in the form of one or more Global
Securities and, in such case, the Depositary or Depositaries for such Global
Security or Global Securities and any circumstances other than those set forth
in Section 2.05 in which any such Global Security may be transferred to, and
registered and exchanged for Securities registered in the name of, a Person
other than the Depositary for such Global Security or a nominee thereof and in
which any such transfer may be registered; (xvi) the terms and conditions, if
any, pursuant to which the Securities are convertible into Common Stock; (xvii)
the terms and conditions, if any, pursuant to which the Securities are
convertible into or exchangeable for any other securities, including (without
limitation) securities of Persons other than the Company; and (xviii) any other
terms of, or provisions, covenants, rights or other matters applicable to, the
series (which terms, provisions, covenants, rights or other matters will not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 10.01(e)).
(c) All Securities of any one series will be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to the Board Resolution referred to below and (subject to Section
2.04) set forth or determined in the manner provided in the Officer's
Certificate referred to above or in any such indenture supplemental hereto.
(d) If any of the terms of the series are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action will be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee concurrently with or prior to the delivery
of the Officer's Certificate setting forth the terms of the series.
II-36
<PAGE> 30
Section 2.02. FORM OF SECURITIES AND TRUSTEE'S CERTIFICATE OF
AUTHENTICATION.
(a) The Securities of each series will be in substantially the
form set forth in or otherwise contemplated by the recitals to this Indenture,
with appropriate variations to reflect the specific terms of such series. 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 will be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee concurrently with or prior to the delivery of the
Company Order contemplated by Section 2.04 for the authentication and delivery
of such Securities.
(b) The definitive Securities will be printed, lithographed,
or engraved on steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the Securities may be
listed, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
(c) The Trustee's certificate of authentication will be in
substantially the form set forth in the recitals to this Indenture.
(d) Every Global Security authenticated and delivered
hereunder will bear a legend in substantially the form set forth in the recitals
to this Indenture.
Section 2.03. DATE AND DENOMINATIONS.
Each Security will be dated the date of its authentication.
The Securities of each series will be issuable only in registered form without
coupons in such denominations as may be specified as contemplated by Section
2.01. In the absence of any such specified denomination with respect to the
Securities of any series, the Securities of such series will be issuable in
denominations of $1,000 and integral multiples thereof.
Section 2.04. EXECUTION, AUTHENTICATION AND DELIVERY OF SECURITIES.
(a) The Securities will be executed on behalf of the Company
by the Chairman or any Vice Chairman of the Board of Directors, the Chief
Executive Officer, the President, or any Vice President of the Company and
attested by the Treasurer, the Secretary, any Assistant Treasurer, or any
Assistant Secretary of the Company under its corporate seal. The signature of
any of these officers on the Securities may be manual or facsimile. The seal of
the Company may be in the form of a facsimile thereof and may be impressed,
affixed, imprinted, or otherwise reproduced on the Securities.
(b) Only such Securities bearing the Trustee's certificate of
authentication, signed manually by the Trustee, will be entitled to the benefits
of this Indenture or be valid or obligatory for any purpose. Such execution of
the certificate of authentication by the Trustee upon any Securities executed by
the Company will be conclusive evidence that
II-37
<PAGE> 31
the Securities so authenticated have been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 2.08, for all purposes of this Indenture such Security will
be deemed never to have been authenticated and delivered hereunder and will
never be entitled to the benefits of this Indenture.
(c) Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company will bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
(d) At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order will authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 2.01 and 2.02, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee will be entitled to receive, and (subject to Section 9.01) will be
fully protected in relying upon, an Opinion of Counsel stating (i) if the form
of such Securities has been established by or pursuant to a Board Resolution as
permitted by Section 2.02, that such form has been established in conformity
with the provisions of this Indenture, (ii) if the terms of such Securities have
been established by or pursuant to a Board Resolution as permitted by Section
2.01, that such terms have been established in conformity with the provisions of
this Indenture, and (iii) that such Securities, when authenticated and delivered
by the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
binding obligations of the Company enforceable in accordance with their terms,
except as the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, or other laws relating to or affecting creditors'
rights and by general principles of equity.
(e) Notwithstanding the provisions of Sections 2.01 and
2.04(d), if all Securities of a series are not to be originally issued at one
time, it will not be necessary to deliver the Officer's Certificate otherwise
required pursuant to Section 2.01 or the Company Order and Opinion of Counsel
otherwise required pursuant to Section 2.04(d) at or prior to the time of
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Section 2.05. REGISTRATION OF TRANSFER AND EXCHANGE.
II-38
<PAGE> 32
(a) The Company will cause to be kept at the Corporate Trust
Office a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register ") in which, subject to such
reasonable regulations as it may prescribe, the Company will provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
(b) Upon surrender for registration of transfer of any
Security of any series at the office or agency in a Place of Payment for that
series, the Company will execute, and the Trustee will authenticate and deliver
in the name of the designated transferee or transferees, one or more new
Securities of the same series, of any authorized denominations and of a like
aggregate principal amount and tenor.
(c) At the option of the Holder, Securities of any series may
be exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company will execute, and the
Trustee will authenticate and deliver the Securities which the Holder making the
exchange is entitled to receive.
(d) Every Security presented or surrendered for registration
of transfer or exchange will (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument or instruments of
transfer, in form reasonably satisfactory to the Company and the Security
Registrar duly executed, by the Holder thereof or his attorney duly authorized
in writing. No service charge will be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 2.06, 3.05, or 10.06 not involving any transfer.
The Company will not be required (i) to issue, register the transfer of, or
exchange Securities of any series during a period beginning at the opening of
business 15 calendar days before the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 3.02(c) and
ending at the close of business on the day of such mailing or (ii) to register
the transfer of or exchange any Security so selected for redemption in whole or
in part, except, in the case of any Securities to be redeemed in part, the
portion thereof not being redeemed.
(e) All Securities issued upon any registration of transfer or
exchange of Securities will be valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
(f) Notwithstanding any other provision in this Indenture, no
Global Security may be transferred to, or registered or exchanged for Securities
registered in the name of,
II-39
<PAGE> 33
any Person other than the Depositary for such Global Security or any nominee
thereof, and no such transfer may be registered, unless (i) such Depositary (A)
notifies the Company that it is unwilling or unable to continue as Depositary
for such Global Security or (B) ceases to be a clearing agency registered under
the Exchange Act, (ii) the Company executes and delivers to the Trustee a
Company Order that such Global Security shall be so transferable, registrable,
and exchangeable, and such transfers shall be registrable, (iii) there shall
have occurred and be continuing an Event of Default with respect to the
Securities evidenced by such Global Security, or (iv) there shall exist such
other circumstances, if any, as have been specified for this purpose as
contemplated by Section 2.01. Notwithstanding any other provision in this
Indenture, a Global Security to which the restriction set forth in the preceding
sentence shall have ceased to apply may be transferred only to, and may be
registered and exchanged for Securities registered only in the name or names of,
such Person or Persons as the Depositary for such Global Security shall have
directed and no transfer thereof other than such a transfer may be registered.
Every Security authenticated and delivered upon registration of transfer of, or
in exchange for or in lieu of, a Global Security to which the restriction set
forth in the first sentence of this Section 2.05(f) shall apply, whether
pursuant to this Section 2.05, Section 2.06, 2.07, 3.05, or 10.06 or otherwise,
will be authenticated and delivered in the form of, and will be, a Global
Security.
Section 2.06. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any
series, the Company may execute and register and upon Company Order the Trustee
will authenticate and deliver temporary Securities (printed, lithographed, or
typewritten), of any authorized denomination, and substantially in the form of
the definitive Securities but with such omissions, insertions, and variations as
may be appropriate for temporary Securities, all as may be determined by the
officers executing such Securities as evidenced by their execution of such
Securities; provided, however that the Company will use reasonable efforts to
have definitive Securities of that series available at the times of any issuance
of Securities under this Indenture. Every temporary Security will be executed
and registered by the Company and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like effect, as the
definitive Securities. The Company will execute and register and furnish
definitive Securities of such series as soon as practicable and thereupon any or
all temporary Securities of such series may be surrendered in exchange therefor
at the office or agency of the Company in the Place of Payment for that series,
and the Trustee will authenticate and deliver in exchange for such temporary
Securities of such series one or more definitive Securities of the same series,
of any authorized denominations, and of a like aggregate principal amount and
tenor. Such exchange will be made by the Company at its own expense and without
any charge to the Holder therefor. Until so exchanged, the temporary Securities
of any series will be entitled to the same benefits under this Indenture as
definitive Securities of the same series authenticated and delivered hereunder.
Section 2.07. MUTILATED, DESTROYED, LOST, AND STOLEN SECURITIES.
II-40
<PAGE> 34
(a) If any mutilated Security is surrendered to the Trustee,
the Company will execute and the Trustee will authenticate and deliver in
exchange therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
(b) If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss, or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company will execute and the Trustee will authenticate
and deliver, in lieu of any such destroyed, lost, or stolen Security, a new
Security of the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
(c) In case any such mutilated, destroyed, lost, or stolen
Security has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security.
(d) Upon the issuance of any new Security under this Section
2.07, the Company may require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
(e) Every new Security of any series issued pursuant to this
Section 2.07 in exchange for any mutilated Security or in lieu of any destroyed,
lost, or stolen Security will constitute an original additional contractual
obligation of the Company, whether or not the mutilated, destroyed, lost, or
stolen Security shall be at any time enforceable by anyone, and will be entitled
to all the benefits of this Indenture equally and proportionately with any and
all other Securities of that series duly issued hereunder.
(f) The provisions of this Section 2.07 are exclusive and will
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 2.08. CANCELLATION OF SURRENDERED SECURITIES.
All Securities surrendered for payment, redemption,
registration of transfer or exchange, or for credit against any sinking fund
payment will, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and will be promptly cancelled by it. The Company may at any time
deliver to the Trustee for cancellation any SECURITIES PREVIOUSLY AUTHENTICATED
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered will
II-41
<PAGE> 35
be promptly cancelled by the Trustee. No Securities will be authenticated in
lieu of or in exchange for any Securities cancelled as provided in this Section
2.08, except as expressly permitted by this Indenture. The Trustee shall destroy
all cancelled Securities held by the Trustee and shall send a certificate of
such destruction to the Company.
Section 2.09. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
(a) Except as otherwise provided as contemplated by Section
2.01 with respect to any series of Securities, interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date will be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest.
(b) 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 (herein called "Defaulted Interest") will forthwith cease to be
payable to the Holder on the relevant regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company
together with interest thereon (to the extent permitted by law) at the rate of
interest applicable to such Security, at its election in each case, as provided
in clause (i) or (ii) below:
(i) The Company may elect to make payment of any Defaulted
Interest (and interest thereon, if any) to the Persons in whose names
the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which will be fixed in
the following manner. The Company will notify the Trustee in writing of
the amount of Defaulted Interest (and interest thereon, if any)
proposed to be paid on each Security of such series and the date of the
proposed payment, and at the same time the Company will deposit with
the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest (and interest thereon,
if any) or will make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the persons entitled
to such Defaulted Interest (and interest thereon, if any) as in this
clause (i) provided. Thereupon the Trustee will fix a Special Record
Date for the payment of such Defaulted Interest (and interest thereon,
if any) which will be not more than 15 calendar days and not less than
lO calendar days prior to the date of the proposed payment and not less
than 10 calendar days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee will promptly notify the Company of
such Special Record Date and, in the name and at the expense of the
Company, will 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
calendar days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest (and interest thereon, if any)
II-42
<PAGE> 36
and the Special Record Date therefor having been so mailed, such
Defaulted Interest will be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and
will no longer be payable pursuant to the following clause (ii).
(ii) The Company may make payment of any Defaulted
Interest (and interest thereon, if any) 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 notice
given by the Company to the Trustee of the proposed payment pursuant to
this clause (ii), such manner of payment shall be deemed practicable by
the Trustee.
(c) Subject to the foregoing provisions of this Section 2.09,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security will carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 2.10. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee, and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of and any
premium and (subject to Section 2.09) any interest on such Security and for all
other purposes whatsoever, whether or not such Security shall be overdue, and
neither the Company, the Trustees nor any agent of the Company or the Trustee
will be affected by notice to the contrary.
Section 2.11. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 2.01
for Securities of any series, interest on the Securities of each series will be
computed on the basis of a 360-day year consisting of twelve 30-day months.
Section 2.12. CUSIP NUMBERS.
The Company in issuing any series of the Securities may use
CUSIP numbers, if then generally in use, and thereafter with respect to such
series, the Trustee may use such numbers in any notice of redemption or exchange
with respect to such series PROVIDED that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any
II-43
<PAGE> 37
defect in or omission of such numbers. The Company will promptly notify the
Trustee of any change in the CUSIP numbers.
ARTICLE III.
REDEMPTION OF SECURITIES.
Section 3.01. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their
Stated Maturity will be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 2.01 for Securities of any
series) in accordance with this Article III.
Section 3.02. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
(a) The election of the Company to redeem any Securities will
be evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company will, at
least 60 calendar days prior to the Redemption Date fixed by the Company (unless
a shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date and of the principal amount of Securities of such series to
be redeemed. In the case of any redemption of Securities prior to the expiration
of any restriction on such redemption provided in the terms of such Securities
or elsewhere in this Indenture, the Company will furnish the Trustee with an
Officer's Certificate evidencing compliance with such restriction.
(b) Notice of redemption of Securities to be redeemed at the
election of the Company will be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company and will
be irrevocable. Notice of redemption will be given by mail, first class postage
prepaid, not less than 30 or more than 60 calendar 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 will state (i) the Redemption
Date, (ii) the Redemption Price, (iii) if less than all the Outstanding
Securities of any series are to be redeemed, the identification (and, in the
case of partial redemption of any Securities, the principal amounts) of the
particular Securities to be redeemed, (iv) that on the Redemption Date the
Redemption Price will become due and payable upon each such Security to be
redeemed and, if applicable, that interest thereon will cease to accrue on and
after said date, (v) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, (vi) that the redemption is for
a sinking fund, if such is the case, and (vii) the specific provision of this
Indenture pursuant to which such Securities are to be redeemed.
(c) If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed will be selected not more
than 60 calendar days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series not previously called for redemption, by
such method as the Trustee may deem fair and
II-44
<PAGE> 38
appropriate and which may provide for the selection for redemption of portions
(equal to the minimum authorized denomination for Securities of that series or
any integral multiple thereof) of the principal amount of Securities of such
series of a denomination larger than the minimum authorized denomination for
Securities of that series. The Trustee will promptly notify the Company 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.
(d) For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities will
relate, in the case of any Securities redeemed or to be redeemed only in part,
to the portion of the principal amount of such Securities which has been or is
to be redeemed.
Section 3.03. DEPOSIT OF REDEMPTION PRICE.
Prior to 10:00 a.m. on any Redemption Date specified in the
notice of redemption given as provided in Section 3.02, the Company will deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 6.03) an amount
of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) any accrued interest on, all
of the Securities that are to be redeemed on that date.
Section 3.04. SECURITIES PAYABLE ON REDEMPTION DATE.
(a) Notice of redemption having been given as aforesaid, the
Securities so to be redeemed will, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company defaults in the payment of the Redemption Price and accrued
interest) such Securities will cease to accrue interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security will
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 2.01, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will 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 Record Dates in accordance with their terms
and the provisions of Section 2.09.
(b) If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and any premium will, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 3.05. SECURITIES REDEEMED IN PART.
Any Security that is to be redeemed only in part will be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company
II-45
<PAGE> 39
and the Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing), and the Company will execute, and the Trustee will
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities of the same series and of like tenor, 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.
ARTICLE IV.
SINKING FUNDS.
Section 4.01. APPLICABILITY OF ARTICLE.
The provisions of this Article IV will be applicable to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 2.01 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
amount of any sinking fund payment may be subject to reduction as provided in
Section 4.02. Each sinking fund payment with respect to Securities of a
particular series will be applied to the redemption of Securities of such series
as provided for by the terms of Securities of such series.
Section 4.02. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (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 the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series, provided that such Securities have not been previously so credited. Such
Securities will 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 will be reduced
accordingly.
Section 4.03. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 calendar days prior to each sinking fund
payment date for any series of Securities, the Company will deliver to the
Trustee an Officer's 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, that is to be satisfied by payment of cash and the
portion thereof, if any, that is to be satisfied by delivering and crediting
II-46
<PAGE> 40
Securities of that series pursuant to Section 4.02 and will also deliver to the
Trustee any Securities to be so delivered. Not less than 30 calendar days before
each such sinking fund payment date, the Trustee will select the Securities to
be redeemed upon such sinking fund payment date in the manner specified in
Section 3.02(c) and cause notice of the redemption thereof to be given in the
name of and at the expense of the Company in the manner provided in Section
3.02(b). Such notice having been duly given, the redemption of such Securities
will be made upon the terms and in the manner stated in Sections 3.04 and 3.05.
ARTICLE V.
DEFEASANCE AND COVENANT DEFEASANCE
Section 5.01. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE.
The Company may elect, at its option by Board Resolution at
any time, to have either Section 5.02 or Section 5.03 applied to the Outstanding
Securities of any series designated pursuant to Section 2.01 as being defeasible
pursuant to this Article V (hereinafter called "Defeasible Series"), upon
compliance with the conditions set forth below in this Article V, PROVIDED that
Section 5.02 will not apply to any series of Securities that is convertible into
Common Stock pursuant to Section 2.01(b)(xvi) or convertible into or
exchangeable for any other securities pursuant to Section 2.01 (b)(xvii).
Section 5.02. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the option provided in Section
5.01 to have this Section 5.02 applied to the Outstanding Securities of any
Defeasible Series and subject to the proviso to Section 5.01, the Company will
be deemed to have been discharged from its obligations with respect to the
Outstanding Securities of such series as provided in this Section 5.02 on and
after the date the conditions set forth in Section 5.04 are satisfied
(hereinafter called "Defeasance"). For this purpose, such Defeasance means that
the Company will be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities of such series and to have satisfied
all its other obligations under the Securities of such series and this Indenture
insofar as the Securities of such series are concerned (and the Trustee, at the
expense of the Company, will execute proper instruments acknowledging the same),
subject to the following which will survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of Securities of such series to
receive, solely from the trust fund described in Section 5.04 and as more fully
set forth in Section 5.04, payments in respect of the principal of and any
premium and interest on such Securities of such series when payments are due,
(b) the Company's obligations with respect to the Securities of such series
under Sections 2.05,2.06,2.07, 6.02, 6.03, and 10.06, (c) the rights, powers,
trusts, duties, and immunities of the Trustee hereunder, and (d) this Article V.
Subject to compliance with this Article V, the Company may exercise its option
provided in Section 5.01 to have this Section 5.02 applied to the Outstanding
Securities of any Defeasible Series notwithstanding the prior
II-47
<PAGE> 41
exercise of its option provided in Section 5.01 to have Section 5.03 applied to
the Outstanding Securities of such series.
Section 5.03. COVENANT DEFEASANCE.
Upon the Company's exercise of the option provided in Section
5.01 to have this Section 5.03 applied to the Outstanding Securities of any
Defeasible Series, (a) the Company will be released from its obligations under
Sections 6.04 through 6.11, inclusive, Section 11.01, and the provisions of any
Supplemental Indenture specified in such Supplemental Indenture, and (b) the
occurrence of any event specified in Sections 8.01(a)(iii), 8.01(a)(iv) (with
respect to any of Sections 6.04 through 6.11, inclusive, Section 11.01, and the
provisions of any Supplemental Indenture specified in such Supplemental
Indenture), 8.01(a)(v), and 8.01(a)(viii) will be deemed not to be or result in
an Event of Default, in each case with respect to the Outstanding Securities of
such series as provided in this Section on and after the date the conditions set
forth in Section 5.04 are satisfied (hereinafter called "Covenant Defeasance").
For this purpose, such Covenant Defeasance means that the Company may omit to
comply with and will have no liability in respect of any term, condition, or
limitation set forth in any such specified Section (to the extent so specified
in the case of Section 8.01(a)(iv)), whether directly or indirectly by reason of
any reference elsewhere herein to any such Section or by reason of any reference
in any such Section to any other provision herein or in any other document, but
the remainder of this Indenture and the Securities of such series will be
unaffected thereby.
Section 5.04. CONDITIONS TO DEFEASANCE COVENANT DEFEASANCE.
The following will be the conditions to application of either Section
5.02 or Section 5.03 to the Outstanding Securities of any Defeasible Series:
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee that satisfies the
requirements contemplated by Section 9.08 and agrees to comply with the
provisions of this Article V applicable to it) as trust funds in trust for the
benefit of the Holders of Outstanding Securities of such series (i) money in an
amount, or (ii) U.S. Government Obligations that through the scheduled payment
of principal and interest in respect thereof in accordance with their terms will
provide, without reinvestment, not later than one day before the due date of any
payment, money in an amount, or (iii) a combination thereof, in each case
sufficient to pay and discharge, and which will be applied by the Trustee (or
any such other qualifying trustee) to pay and discharge, the principal of and
any premium and interest on the Securities of such series on the respective
Stated Maturities or on any earlier date or dates on which the Securities of
such series shall be subject to redemption and the Company shall have given the
Trustee irrevocable instructions satisfactory to the Trustee to give notice to
the Holders of the redemption of the Securities of such series, all in
accordance with the terms of this Indenture and the Securities of such series.
II-48
<PAGE> 42
(b) In the case of an election under Section 5.02, the Company
shall have delivered to the Trustee an Opinion of Counsel (from a counsel who
shall not be an employee of the Company) to the effect that (i) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling, or (ii) since the date of this Indenture there has been a change in the
applicable federal income tax law, in either case to the effect that, and based
thereon, such opinion shall confirm that, the Holders of the Outstanding
Securities of such series will not recognize gain or loss for federal income tax
purposes as a result of the deposit, Defeasance, and discharge to be effected
with respect to the Securities of such series and will be subject to federal
income tax on the same amount, in the same manner, and at the same times as
would be the case if such deposit, Defeasance, and discharge were not to occur.
(c) In the case of an election under Section 5.03, the Company
shall have delivered to the Trustee an Opinion of Counsel (from a counsel who
shall not be an employee of the Company) to the effect that the Holders of the
Outstanding Securities of such series will not recognize gain or loss for
federal income tax purposes as a result of the deposit and Covenant Defeasance
to be effected with respect to the Securities of such series and will be subject
to federal income tax on the same amount, in the same manner, and at the same
times as would be the case if such deposit and Covenant Defeasance were not to
occur.
(d) The Company shall have delivered to the Trustee an
Officer's Certificate to the effect that the Securities of such series, if then
listed on any securities exchange, will not be delisted solely as a result of
such deposit.
(e) No Event of Default or event that (after notice or lapse
of time or both) would become an Event of Default shall have occurred and be
continuing at the time of such deposit or, with regard to any Event of Default
or any such event specified in Sections 8.01(a)(vi) and (vii), at any time on or
prior to the 90th calendar day after the date of such deposit (it being
understood that this condition will not be deemed satisfied until after such
90th calendar day).
(f) Such Defeasance or Covenant Defeasance will not cause the
Trustee to have a conflicting interest within the meaning of the Trust Indenture
Act (assuming all Securities are in default within the meaning of such Act).
(g) Such Defeasance or Covenant Defeasance will not result in
a breach or violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which it is bound.
(h) The Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant Defeasance have
been complied with.
II-49
<PAGE> 43
(i) Such Defeasance or Covenant Defeasance will not result in the trust
arising from such deposit constituting an investment company within the meaning
of the Investment Company Act of 1940, as amended, unless such trust will be
qualified under such Act or exempt from regulation thereunder.
Section 5.05. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST, OTHER MISCELLANEOUS PROVISIONS.
(a) Subject to the provisions of Section 6.03(e), all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee or other qualifying trustee (solely for purposes of this Section
5.05 and Section 5.06, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 5.04 in respect of the
Securities of any Defeasible Series will be held in trust and applied by the
Trustee, in accordance with the provisions of the Securities of such series and
this Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of Securities of such series, of all sums due and to
become due thereon in respect of principal and any premium and interest, but
money so held in trust need not be segregated from other funds except to the
extent required by law.
(b) The Company will pay and indemnify the Trustee against any
tax, fee, or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 5.04 or the principal and interest
received in respect thereof other than any such tax, fee, or other charge that
by law is for the account of the Holders of Outstanding Securities.
(c) Notwithstanding anything in this Article V to the
contrary, the Trustee will deliver or pay to the Company from time to time upon
a Company Request any money or U.S. Government Obligations held by it as
provided in Section 5.04 with respect to Securities of any Defeasible Series
that are in excess of the amount thereof that would then be required to be
deposited to effect an equivalent Defeasance or Covenant Defeasance with respect
to the Securities of such series.
Section 5.06. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any
money in accordance with this Article V with respect to the Securities of any
series by reason of any order or judgment of any court or governmental authority
enjoining, restraining, or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Securities of such series
will be revived and reinstated as though no deposit had occurred pursuant to
this Article V with respect to Securities of such series until such time as the
Trustee or Paying Agent is permitted to apply all money held in trust pursuant
to Section 5.05 with respect to Securities of such series in accordance with
this Article V; PROVIDED, HOWEVER that if the Company makes any payment of
principal of or any premium or interest on any Security of such series following
the reinstatement of its
II-50
<PAGE> 44
obligations, the Company will be subrogated to the rights of the Holders of
Securities of such series to receive such payment from the money so held in
trust.
ARTICLE VI.
PARTICULAR COVENANTS OF THE COMPANY.
Section 6.01. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST ON SECURITIES.
The Company, for the benefit of each series of Securities,
will duly and punctually pay the principal of and any premium and interest on
the Securities of that series in accordance with the terms of the Securities and
this Indenture.
Section 6.02. MAINTENANCE OF OFFICE OR AGENCY.
(a) The Company will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange, and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices, and demands may be made or served at
the Corporate Trust Office, and the Company hereby appoints the Trustee as its
agent to receive all such presentations, surrenders, notices, and demands.
(b) The Company may also from time to time designate one or
more other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; PROVIDED, HOWEVER that no such designation or
rescission will in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of any series for
such purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
Section 6.03. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
(a) If the Company shall at any time act as its own Paying
Agent with respect to any series of Securities, it will, on or before each due
date of the principal of or any premium 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 any premium and 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.
II-51
<PAGE> 45
(b) Whenever the Company shall have one or more Paying Agents
for any series of Securities, it will, prior to each due date of the principal
of or any premium or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
(c) The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent will agree with the Trustee, subject to
the provisions of this Section 6.03, that such Paying Agent will (i) comply with
the provisions of the Trust Indenture Act applicable to it as a Paying Agent and
(ii) during the continuance of any default by the Company (or any other obliger
upon the Securities of that series) in the making of any payment in respect of
the Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
(d) The Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent will be released from all further liability with
respect to such money.
(e) Any money deposited with the Trustee or any Paying Agent,
or then held by the Company, in trust for the payment of the principal of or any
premium or interest on any Security of any series and remaining unclaimed for
two years after such principal, premium, or interest has become due and payable
will be paid to the Company upon a Company Request (or, if then held by the
Company, will be discharged from such trust); and the Holder of such Security
will thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, will thereupon cease; PROVIDED, HOWEVER that the Trustee or such Paying
Agent, before being required to make any such repayment, may at the expense of
the Company cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation
in the Borough of Manhattan, The City of New York, notice that such money
remains unclaimed and that, after a date specified therein, which will not be
less than 30 calendar days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
Section 6.04. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (a) all taxes, assessments,
and governmental
II-52
<PAGE> 46
charges levied or imposed upon the Company or any Subsidiary of the Company or
upon the income, profits, or property of the Company or any Subsidiary of the
Company, and (b) all lawful claims for labor, materials, and supplies, in each
case which, if unpaid, might by law become a lien upon the property of the
Company or any Subsidiary of the Company and might have a Material Adverse
Effect; PROVIDED, HOWEVER that the Company will not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge, or
claim the amount, applicability, or validity of which is being contested in good
faith by appropriate proceedings.
Section 6.05. MAINTENANCE OF PROPERTIES.
The Company will cause all properties used or useful in the
conduct of its business or the business of any Subsidiary of the Company to be
maintained and kept in good condition, repair, and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments, and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
PROVIDED, HOWEVER that nothing in this Section 6.05 will prevent the Company
from discontinuing the operation or maintenance of any of such properties if
such discontinuance is, in the judgment of the Company, desirable in the conduct
of its business or the business of any Subsidiary of the Company and will not
result in a Material Adverse Effect.
Section 6.06. EXISTENCE.
Subject to Article XI, the Company will, and will cause each
of its Subsidiaries to, do or cause to be done all things necessary to preserve
and keep in full force and effect its existence, rights (charter and statutory),
and franchises; PROVIDED, HOWEVER, that neither the Company nor any Subsidiary
will be required to preserve any such right or franchise, or its existence in
the case of any Subsidiary, if the Company determines that the preservation
thereof is no longer desirable in the conduct of the business of the Company
and that the loss thereof will not result in a Material Adverse Effect.
Section 6.07. COMPLIANCE WITH LAWS.
The Company will, and will cause each of its Subsidiaries to,
comply with all applicable federal, state, local, or foreign laws, rules,
regulations, or ordinances, including without limitation such laws, rules,
regulations, or ordinances relating to pension, environmental, employee, and tax
matters, in each case to the extent that the failure so to comply would have a
Material Adverse Effect.
Section 6.08. STATEMENT BY OFFICERS AS TO DEFAULT.
The Company will deliver to the Trustee, within 120 calendar
days after the end of each fiscal year of the Company ending after the date
hereof, an Officer's
II-53
<PAGE> 47
Certificate signed by the principal executive officer, principal financial
officer, or principal accounting officer of the Company stating whether or not
to the knowledge of such person after due inquiry the Company is in default in
the performance and observance of any of the terms, provisions, and conditions
of this Indenture (without regard to any period of grace or requirement of
notice provided hereunder) and, if the Company is in default, specifying all
such defaults and the nature and status thereof of which such person may have
such knowledge.
Section 6.09. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with
any term, provision, or condition set forth in Sections 6.04 through 6.07,
inclusive, and the provisions of any Supplemental Indenture specified in such
Supplemental Indenture, with respect to the Securities of any series if the
Holders of a majority in principal amount of the Outstanding Securities of such
series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision, or condition,
but no such waiver will extend to or affect such term, provision, or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision, or condition will remain in full force and
effect.
Section 6.10 LIMITATIONS ON LIENS.
The Company covenants not to incur or guarantee any Secured
Debt without equally and ratably securing the Debt Securities, and not to permit
its Restricted Subsidiaries to do so.
This covenant is not applicable to (i) Secured Debt existing
at the date of the Indenture; (ii) liens on real or personal property acquired,
constructed or improved by the Company or a Restricted Subsidiary after the
date of the Indenture which are created contemporaneously with, or within 12
months after, the acquisition, construction or improvement to secure all or any
part of the purchase price of such property or the cost of such construction or
improvement; (iii) mortgages on property of the Company or a Restricted
Subsidiary created within 12 months of the completion of construction or
improvement of any new plant(s) on such property to secure the cost of such
construction or improvement; (iv) liens on property existing at the time the
property was acquired by the Company or any Restricted Subsidiary; (v) liens on
the outstanding shares or indebtedness of a corporation existing at the time
such corporation becomes a Subsidiary; (vi) liens on stock (except stock of
Subsidiaries) acquired after the date of the Indenture if the aggregate cost
thereof does not exceed 15% of Consolidated Net Tangible Assets; (vii) liens
securing indebtedness of a successor corporation to the Company to the extent
permitted by the Indenture; (viii) liens securing indebtedness of a Restricted
Subsidiary at the time it became such; (ix) liens securing indebtedness of any
entity outstanding at the time it merged with, or substantially all of its
properties were acquired by, the Company or any Restricted Subsidiary; (x)
liens created, incurred or assumed in connection with an
II-54
<PAGE> 48
industrial revenue bond, pollution control bond or similar financing arrangement
between the Company or any Restricted Subsidiary and any federal, state or
municipal government or other governmental body or quasi-governmental agency;
(xi) liens in connection with government or other contracts to secure progress
or advance payments; (xii) liens in connection with taxes or legal proceedings
to the extent such taxes or legal proceedings are being contested or appealed in
good faith or are incurred for the purpose of obtaining a stay or discharge in
the course of such proceedings; (xiii) liens consisting of mechanics' or
materialmen's or similar liens incurred in the ordinary course of business and
easements, rights of way, zoning restrictions, restrictions on the use of real
property and defects and irregularities in title thereto; (xiv) liens made in
connection with or to secure payment of workers' compensation, unemployment
insurance, or social security obligations; (xv) liens in connection with the
Sale and Leaseback Transactions which are not subject to the limitations
described below under "Limitations on Sale and Leaseback"; (xvi) mortgages to
secure debt of a Restricted Subsidiary to the Company or to another Restricted
Subsidiary; and (xvii) extensions, renewals or replacements of the foregoing
permitted liens to the extent of the original amounts thereof.
In addition, the Company and its Restricted Subsidiaries may
have Secured Debt not otherwise permitted or excepted without equally and
ratably securing the Securities if the sum of such Secured Debt plus the
aggregate value of Sale and Leaseback Transactions subject to limitation as
described below, does not exceed 15% of the Consolidated Net Tangible Assets.
Section 6.11 LIMITATIONS ON SALE AND LEASEBACK.
The Company covenants not to engage in any Sale and Leaseback
Transactions (except leases for a temporary period not exceeding 36 months)
involving any Principal Property, or to permit any of its Restricted
Subsidiaries which has been in operation for more than 180 days to do so, unless
(i) the Company or such Restricted Subsidiary would be entitled to incur Secured
Debt on such Principal Property equal to the amount realizable upon such sale or
transfer as if such amount were secured by a mortgage, without equally and
ratably securing the Debt Securities; or (ii) an amount equal to the greater of
the net proceeds of the sale or the fair value of such Principal Property is
applied within 180 days either to (a) the retirement of indebtedness of the
Company that was Funded Debt at the time it was created or (b) the purchase of
other Principal Property having a value at least equal to the greater of such
amounts; or (iii) the Sale and Leaseback Transaction involved an industrial
revenue bond, pollution control bond or other similar financing arrangement
between the Company or any Restricted Subsidiary and any federal, state or
municipal government or other governmental body or agency.
II-55
<PAGE> 49
ARTICLE VII.
SECURITIES HOLDERS' LIST AND
REPORTS BY THE COMPANY AND THE TRUSTEE.
Section 7.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS.
The Company will furnish or cause to be furnished to the
Trustee (a) semi-annually, not more than 15 calendar days after the applicable
Regular Record Date, a list for each series of Securities, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders of
Securities of such series as of such Regular Record Date and (b) at such other
times as the Trustee may request in writing, within 30 calendar days after the
receipt by the Company of any such request, a list of similar form and content
as of a date not more than 15 calendar days prior to the time such list is
furnished; excluding from any such list names and addresses received by the
Trustee in its capacity as Security Registrar.
Section 7.02. PRESERVATION OF INFORMATION; COMMUNICATION TO HOLDERS.
(a) The Trustee will 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. The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.
II-56
<PAGE> 50
(b) The rights of the Holders to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee, will be
as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them will be held accountable by reason of
any disclosure of information as to names and addresses of Holders made pursuant
to the Trust Indenture Act.
Section 7.03. REPORTS BY TRUSTEE.
The Trustee will transmit to Holders such reports concerning
the Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant
thereto. A copy of each such report will, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission, and with the Company. The Company
will promptly notify the Trustee when any Securities are listed on any stock
exchange or of any delisting thereof.
Section 7.04. REPORTS BY COMPANY.
The Company will file with the Trustee and the Commission, and
transmit to Holders, such information, documents, and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents, or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act will be filed with the
Trustee within 15 calendar days after the same is so required to be filed with
the Commission.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein,
including the Company's compliance with any of its covenants hereunder (as to
which the Trustee is entitled to conclusively rely exclusively on Officer's
Certificates).
ARTICLE VIII.
DEFAULT.
Section 8.01. EVENT OF DEFAULT.
(a) "Event of Default," wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it may be voluntary or involuntary
or be effected by operation of law or
II-57
<PAGE> 51
pursuant to any judgment, decree, or order of any court or any order, rule, or
regulation of any administrative or governmental body):
(i) default in the payment of any interest upon any
Security of that series when it becomes due and payable, and
continuance of such default for a period of 30 calendar days;
(ii) default in the payment of the principal of (or
premium, if any, on) any Security of that series when it becomes due
and payable;
(iii) default in the making of any sinking fund
payment when and as due by the terms of a Security of that series;
(iv) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other than a
covenant or warranty, a default in the performance or breach of which
is elsewhere in this Section 8.01 specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of one
or more series of Securities other than that series), and continuance
of such default or breach for a period of 60 calendar days after there
has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default "
hereunder;
(v) any nonpayment at maturity or other default is
made under any agreement or instrument relating to any other
Indebtedness of the Company (the unpaid principal amount of which is
not less than $100 million), and, in any such case, such default
(A) continues beyond any period of grace provided with respect thereto
and (B) results in such Indebtedness becoming due prior to its stated
maturity or occurs at the final maturity of such Indebtedness;
PROVIDED, HOWEVER, that, subject to the provisions of Section 9.01 and
8.08, the Trustee will not be deemed to have knowledge of such
nonpayment or other default unless either (1) a Responsible Officer of
the Trustee has actual knowledge of nonpayment or other default or (2)
the Trustee has received written notice thereof from the Company, from
any Holder, from the holder of any such Indebtedness or from the
trustee under the agreement or instrument relating to such
Indebtedness;
(vi) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the Company
in an involuntary case or proceeding under any applicable federal or
state bankruptcy, insolvency, reorganization, or other similar law or
(B) a decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment, or composition of or in respect of the Company
under any applicable federal or state law, or appointing a custodian,
II-58
<PAGE> 52
receiver, liquidator, assignee, trustee, sequestrator, or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
calendar days;
(vii) the commencement by the Company of a voluntary
case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization, or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the consent
by it to the entry of a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization, or other
similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief with respect to the Company
under any applicable federal or state bankruptcy, insolvency,
reorganization, or other similar law, or the consent by it to the
filing of such petition or to the appointment of or taking possession
by a custodian, receiver, liquidator, assignee, trustee, sequestrator,
or other similar official of the Company or of any substantial part of
its property pursuant to any such law, or the making by it of an
assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due,
or the taking of corporate action by the Company in furtherance of any
such action; or
(viii) any other Event of Default provided with
respect to Securities of that series.
(b) If an Event of Default (other than an Event of Default
arising under Section 8.01(a)(vi) or (vii)) with respect to Securities of any
series at the time Outstanding occurs and is continuing, then in every case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
any of the Securities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be specified in
the terms thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) will become immediately due and payable. If an Event of Default under
Section 8.01(a)(vi) or (vii) occurs, then the principal of, premium, if any, and
accrued interest on the Securities shall become immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder.
(c) At any time after such a 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 VIII provided, the Holders of a majority in
principal amount of the outstanding Securities of that
II-59
<PAGE> 53
series, by written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if (i) the Company has paid or deposited
with the Trustee a sum sufficient to pay (A) all overdue interest on all
Securities of that series, (B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than by such
declaration of acceleration and any 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, disbursements, and
advances of the Trustee and its agents and counsel and (ii) all Events of
Default with respect to Securities of that series, other than the nonpayment of
the principal of Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in Section
8.01(d). No such rescission will affect any subsequent default or impair any
right consequent thereon.
(d) The Holders of a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default (i) in the payment of the
principal of or any premium or interest on any Security of such series or (ii)
in respect of a covenant or provision hereof which under Article X 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 will cease
to exist, and any Event of Default arising therefrom will be deemed to have been
cured, for every purpose of this Indenture, but no such waiver will extend to
any subsequent or other default or impair any right consequent thereon.
Section 8.02. COVENANT OF COMPANY TO PAY TO TRUSTEE WHOLE AMOUNT DUE ON
SECURITIES ON DEFAULT IN PAYMENT OF INTEREST OR PRINCIPAL; SUITS FOR ENFORCEMENT
BY TRUSTEE.
(a) The Company covenants that if (i) default is made in the
payment of any interest on any Security when such interest becomes due and
payable and such default continues for a period of 30 calendar days or (ii)
default is made in the payment of the principal of (or premium, if any, on) any
Security when it becomes due and payable, the Company will, upon demand of the
Trustee, pay to it, for the benefit of the Holders of such Securities, the whole
amount then due and payable on such Securities for principal and any premium and
interest and, to the extent that payment of such interest will be legally
enforceable, interest on any overdue principal and premium and on any overdue
interest, at the rate or rates prescribed therefor in such Securities, and, in
addition thereto, such further amount as will be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements, and advances of the Trustee and its agents and counsel.
(b) 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
II-60
<PAGE> 54
proceedings as the Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
(c) In case of any judicial proceeding relative to the Company
(or any other obliger upon the Securities), its property or its creditors, the
Trustee will be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee will be authorized 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 other 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 consents to the making of such payments directly to
the Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements, and advances of the Trustee and its
agents and counsel, and any other amounts due the Trustee under Section 9.06.
(d) No provision of this Indenture will 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;
PROVIDED, HOWEVER, that the Trustee may, on behalf of the Holders, vote for the
election of a trustee in bankruptcy or similar official and be a member of a
creditors' or other similar committee.
(e) All rights of action and claims under this Indenture or
the Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee will be
brought in its own name as trustee of an express trust, and any recovery of
judgment will, after provision for the payment of the reasonable compensation,
expenses, disbursements, and advances of the Trustee and 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 8.03. APPLICATION OF MONEY COLLECTED BY TRUSTEE.
Any money collected by the Trustee pursuant to this Article
VIII will be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
or any premium or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
II-61
<PAGE> 55
FIRST: To the payment of all amounts due the Trustee under
Section 9.06;
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the
Securities 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 any premium and interest, respectively;
and
THIRD: To the Company.
Section 8.04. LIMITATION ON SUITS BY HOLDERS OF SECURITIES.
No Holder of any Security of any series will 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 that
series, (b) the Holders of not less than 25 % in principal amount of the
Outstanding Securities of that 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 reasonable indemnity against the costs, expenses, and liabilities to be
incurred in compliance with such request, (d) the Trustee for 60 calendar days
after its receipt of such notice, request, and offer of indemnity has failed to
institute any such proceeding, and (e) no direction inconsistent with such
written request has been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding Securities of that
series, it being understood and intended that no one or more of such Holders
will 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 of such Holders, or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all of such Holders.
Section 8.05. RIGHTS AND REMEDIES CUMULATIVE; DELAY OR OMISSION IN
EXERCISE OF RIGHTS NOT A WAIVER OF EVENT OF DEFAULT.
(a) Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost, or stolen Securities in
the last paragraph of Section 2.07, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy will, 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
II-62
<PAGE> 56
assertion or employment of any right or remedy hereunder, or otherwise, will not
prevent the concurrent assertion or employment of any other appropriate right or
remedy.
(b) No delay or omission of the Trustee or of any Holder of
any Securities to exercise any right or remedy accruing upon any Event of
Default will 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 VIII or by law to the Trustee or to 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 8.06. RIGHTS OF HOLDERS OF MAJORITY IN PRINCIPAL AMOUNT OF
OUTSTANDING SECURITIES TO DIRECT TRUSTEE.
The Holders of a majority in principal amount of the
Outstanding Securities of any series will have the right to direct the time,
method, and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the Securities of such series, PROVIDED that (a) such direction will 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 8.07. REQUIREMENT OF AN UNDERTAKING TO PAY COSTS IN CERTAIN
SUITS UNDER THE INDENTURE OR AGAINST THE TRUSTEE.
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, a court may require any party litigant in
such suit to file undertaking to pay the costs of such suit, and may assess
costs against any such party litigant, in the manner and to the extent provided
in the Trust Indenture Act; PROVIDED that neither this Section 8.07 nor the
Trust Indenture Act will be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company.
Section 8.08. NOTICE OF DEFAULTS.
If a Default occurs hereunder with respect to Securities of
any series, the Trustee will give the Holders of Securities of such series
notice of such Default as and to the extent provided by the Trust Indenture Act;
PROVIDED, HOWEVER, that in the case of any Default of the character specified in
Section 8.01(a)(iv) with respect to Securities of such series no such notice to
Holders will be given until at least 30 calendar days after the occurrence
thereof. The Company will give the Trustee notice of any uncured Event of
Default within 10 days after any Responsible Officer of the Company becomes
aware of or receives actual notice of such Event of Default.
Section 8.09. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM, AND INTEREST.
II-63
<PAGE> 57
Notwithstanding any other provision in this Indenture, the
Holder of any Security will have the right, which is absolute and unconditional,
to receive payment of the principal of and any premium and (subject to Section
2.09) 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 may not
be impaired without the consent of such Holder.
Section 8.10. 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, subject to any
determination in such proceeding, the Company, the Trustee, and the Holders will
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders will continue
as though no such proceeding had been instituted.
Section 8.11. TRUSTEE MAY FILE PROOFS OF CLAIMS.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements, and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceeding relative to the Company or the
Subsidiaries (or any other obligor upon the Securities), their creditors or
their property and shall be entitled and empowered to collect and receive any
monies or other property payable or deliverable on any such claim and to
distribute the same, and any custodian in any such judicial proceedings 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 to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements, and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee hereunder. 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.
ARTICLE IX.
CONCERNING THE TRUSTEE.
Section 9.01. CERTAIN DUTIES AND RESPONSIBILITIES.
The duties and responsibilities of the Trustee will be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, no provision
of this Indenture will require the
II-64
<PAGE> 58
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. 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 will be subject to the
provisions of this Section 9.01.
Section 9.02. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 9.01: (a) the Trustee may
conclusively rely and will be protected in acting or refraining from acting
upon, whether in its original or facsimile form, 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 the Company
mentioned herein will be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board will 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 Officer's Certificate; (d) the Trustee may consult with counsel of
its selection and the advice of such counsel or any Opinion of Counsel will 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 will 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 will not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence 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 will be entitled to examine the
books, records, and premises of the Company, personally or by agent or attorney
at the sole cost of the Company and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation; (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 and the Trustee
will not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder; and (h) the Trustee
shall not be liable for any action taken, suffered, or omitted to be taken by it
in good faith and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture.
Section 9.03. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
II-65
<PAGE> 59
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, may be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. The Trustee
or any Authenticating Agent will not be accountable for the use or application
by the Company of Securities or the proceeds thereof.
Section 9.04. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar, or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 9.07 and 9.12, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar, or such other agent.
Section 9.05. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required herein or by law. The
Trustee will be under no liability for interest on any money received by it
hereunder except as otherwise agreed in writing with the Company.
Section 9.06. COMPENSATION AND REIMBURSEMENT.
The Company will (a) pay to the Trustee from time to time such
compensation for all services rendered by it hereunder as the parties shall
agree from time to time (which compensation will not be limited to any provision
of law in regard to the compensation of a trustee of an express trust); (b)
except as otherwise expressly provided herein, reimburse the Trustee upon its
request for all reasonable expenses, disbursements, and advances incurred or
made by the Trustee in accordance with provision of this Indenture (including
the reasonable compensation and the expenses and disbursements of agents and
counsel), except any such expense, disbursement, or advance as may be
attributable to its negligence or bad faith; and (c) indemnify each of the
Trustee and any predecessor Trustee for, and hold the Trustee harmless against,
any and all loss, liability, claim, or expense incurred without negligence or
bad faith on its part arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, 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.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 8.01(a)(vi) or Section
8.01(a)(vii), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for such services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law.
II-66
<PAGE> 60
Section 9.07. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or acquires a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee will either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
Section 9.08. CORPORATE TRUSTEE REQUIRED ELIGIBILITY.
There will at all times be one or more Trustees hereunder with
respect to the Securities of each series, at least one of which will be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $100,000,000 and its Corporate Trust
Office or principal office in New York City, or any other major city in the
United States that is acceptable to the Company. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of a supervising or examining state or federal authority, then for the purposes
of this Section 9.08, the combined capital and surplus of such Person 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 the Trustee shall cease to be
eligible in accordance with the provisions of this Section 9.08, it will resign
immediately in the manner and with the effect hereinafter specified in this
Article IX.
Section 9.09. 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 IX will become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 9.10.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 9.10 shall not have been delivered to the Trustee within 30 calendar
days after the giving of such notice of resignation, the resigning Trustee may
at the expense of the Company petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If, at any time, (i) the Trustee fails to comply with
Section 9.07 after written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Security for at least six months, (ii) the
Trustee ceases to be eligible under
II-67
<PAGE> 61
Section 9.08 and fails to resign after written request therefor by the Company
or by any such Holder, or (iii) the Trustee becomes incapable of acting or is
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
is appointed or any public officer takes charge or control of the Trustee or of
its property or affairs for the purpose of rehabilitation, conservation, or
liquidation, then, in any such case, (A) the Company by a Board Resolution may
remove the Trustee with respect to all Securities or (B) subject to Section
8.07, any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee with respect to
all Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee resigns, is removed, or becomes incapable
of acting, or if a vacancy occurs in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company by a Board
Resolution will promptly appoint a successor Trustee or Trustees with respect to
the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there will be only one Trustee with
respect to the Securities of any particular series) and will comply with the
applicable requirements of Section 9.10. 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 is appointed by
Act of the Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed will, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 9.10,
become the successor Trustee with respect to the Securities of such series and
to that extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 9.10, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, at the expense of the Company, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) The Company will give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
to all holders of Securities of such series in the manner provided in Section
13.03. Each notice will include the name of the successor Trustee with respect
to the Securities of such series and the address of its Corporate Trust Office.
Section 9.10. 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 so
appointed will execute, acknowledge, and deliver to the Company and to the
retiring Trustee an instrument
II-68
<PAGE> 62
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee will become effective and such successor Trustee, without any
further act, deed, or conveyance, will become vested with all the rights,
powers, trusts, and duties of the retiring Trustee, but, on the request of the
Company or the successor Trustee, such retiring Trustee will, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers, and duties of the retiring Trustee and will duly
assign, transfer, and deliver to such Trustee all property and money held by
such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee, and each successor Trustee with respect to the
Securities of one or more series will execute and deliver an indenture
supplemental hereto wherein such successor Trustee will accept such appointment
and which (i) will contain such provisions as may 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, (ii) if the retiring Trustee is not retiring with respect to
all Securities, will contain such provisions as may 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 will continue to be vested in the
retiring Trustee, and (iii) will add to or change any of the provisions of this
Indenture as may 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 will constitute such Trustees
co-trustees of the same trust and that each such Trustee will be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustees and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
will become effective to the extent provided therein and each such successor
Trustee, without any further act, deed, or conveyance, will become vested with
all the rights, powers, trusts, and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but on request of the Company or any successor
Trustee, such retiring Trustee will duly assign, transfer, and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
will execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all applicable rights, powers, and trusts
referred to in the preceding paragraphs of this Section 9.10.
(d) No successor Trustee will accept its appointment unless at
the time of such acceptance such successor Trustee is qualified and eligible
under this Article IX.
II-69
<PAGE> 63
Section 9.11. 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 may be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, will be the successor of the Trustee hereunder,
provided such corporation is otherwise qualified and eligible under this Article
IX, 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 9.12. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee is or becomes a creditor of the
Company (or any other obligor upon the Securities), the Trustee will be subject
to the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
Section 9.13. APPOINTMENT OF AUTHENTICATING AGENT.
(a) The Trustee may appoint an Authenticating Agent or Agents
with respect to one or more series of Securities which will be authorized to act
on behalf of the Trustee to authenticate Securities of such series issued upon
original issue and upon exchange, registration of transfer, or partial
redemption thereof or pursuant to Section 2.07, and Securities so authenticated
will be entitled to the benefits of this Indenture and will 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 will be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any state thereof, or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by federal or state authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section 9.13,
the combined capital and surplus of such Authenticating Agent will 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 9.13, such
Authenticating Agent will resign immediately in the manner and with the effect
specified in this Section 9.13.
II-70
<PAGE> 64
(b) 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 may be a party, or any corporation succeeding to all or
substantially all the corporate agency or corporate trust business of an
Authenticating Agent, will continue to be an Authenticating Agent, provided such
corporation is otherwise eligible under this Section 9.13, without the execution
or filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
(c) An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions this Section 9.13, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and will 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 will
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 will be appointed unless eligible under the
provisions of this Section 9.13.
(d) The Company agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under this Section
9.13.
(e) If an appointment with respect to one or more series of
Securities is made pursuant to this Section 9.13, the Securities of such series
may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative form of 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.
Citibank, N.A., as Trustee
Dated:______________ By:_________________________
As Authenticating Agent
II-71
<PAGE> 65
By:_________________________
Authorized Signatory
Section 9.14. TRUSTEE'S APPLICATION FOR INSTRUCTIONS FROM THE COMPANY.
Any application by the Trustee for written instructions from
the Company may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the date
on and/or after which such action shall be taken or such omission shall be
effective. In the case of any proposed action or omission expressly authorized
by this Indenture, the Trustee shall not be liable for any action taken by, or
omission of, the Trustee in accordance with a proposal included in such
application on or after the date specified in such application (which date shall
not be less than three Business Days after the date any officer of the Company
actually receives such application, unless any such officer shall have consented
in writing to any earlier date) unless prior to taking any such action (or the
effective date in the case of an omission), the Trustee shall have received
written instructions in response to such application specifying the action to be
taken or omitted. In the case of any proposed action or omission that is not
expressly authorized by this Indenture, the Trustee shall not take or refrain
from taking action unless prior to taking or refraining from taking any such
action, the Trustee shall have received written instructions in response to such
application specifying the action to be taken or omitted.
ARTICLE X.
SUPPLEMENTAL INDENTURES AND CERTAIN ACTIONS.
Section 10.01. PURPOSES FOR WHICH SUPPLEMENTAL INDENTURES MAY BE
ENTERED INTO WITHOUT CONSENT OF HOLDERS.
Without the consent of or notice to any Holders, the Company,
when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of the Company
herein and in the Securities, all to the extent otherwise permitted hereunder;
(b) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such series) or
to surrender any right or power herein conferred upon the Company;
(c) to add any additional Events of Default;
II-72
<PAGE> 66
(d) to add to or change any of the provisions of this
Indenture to such extent as may 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 to permit or facilitate the
issuance of Securities in uncertificated form;
(e) to add to, change, or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities, PROVIDED that any
such addition, change, or elimination (i) will neither (A) apply to any Security
of any series created prior to the execution of such supplemental indenture and
entitled to the benefit of such provision nor (B) modify the rights of the
Holder of any such Security with respect to such provision or (ii) will become
effective only when there is no such Security Outstanding;
(f) to establish the form or terms of Securities of any series
as permitted by Sections 2.01 and 2.02;
(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 may be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
9.10; 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 such action pursuant to this clause
(h) will not adversely affect the interests of the Holders of Securities of any
series in any material respect.
Section 10.02. MODIFICATION OF INDENTURE WITH CONSENT OF HOLDERS OF AT
LEAST A MAJORITY IN PRINCIPAL AMOUNT OF OUTSTANDING SECURITIES.
(a) With the consent of the Holders of a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; PROVIDED, HOWEVER
that no such supplemental indenture will, without the consent of the Holder of
each Outstanding Security affected thereby:
(i) 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 reduce the amount of the
principal of an Original Issue Discount Security that would
II-73
<PAGE> 67
be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Sections 8.01(b), or change any Place of Payment
where, or the coin or currency in which, any Security or any premium or
interest thereon is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption
Date);
(ii) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of the Holders of
which is required for any such supplemental indenture, or the consent
of the Holders of which 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
(iii) modify any of the provisions of this Section 10.02,
Section 8.01(d) or Section 6.09, except to increase the percentage in
principal amount of Holders required under any such Section 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 (c) will 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 10.02 and Section 6.09, or the deletion of this
proviso, in accordance with the requirements of Sections 9.10 and
10.01(g).
(b) 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, will be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
(c) It will not be necessary for any Act of Holders under this
Section 10.02 to approve the particular form of any proposed supplemental
indenture, but it will be sufficient if such Act approves the substance thereof.
Section 10.03. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article X or the modifications
thereby of the trusts created by this Indenture, the Trustee will be entitled to
receive, and (subject to Section 9.01) will be fully protected in relying upon,
an Officers' Certificate and an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but will not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties, or immunities under
this Indenture or otherwise.
Section 10.04. EFFECT OF SUPPLEMENTAL INDENTURES.
II-74
<PAGE> 68
Upon the execution of any supplemental indenture under this
Article X, this Indenture will be modified in accordance therewith, and such
supplemental indenture will form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder will be bound thereby.
Section 10.05. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
X will conform to the requirements of the Trust Indenture Act.
Section 10.06. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article X may, and will
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE XI.
CONSOLIDATION, MERGER, SALE, OR TRANSFER.
Section 11.01. CONSOLIDATIONS AND MERGERS OF COMPANY AND SALES
PERMITTED ONLY ON CERTAIN TERMS.
(a) The Company shall not consolidate with or merge with or
into any other Person, or transfer (by lease, assignment, sale, or otherwise)
all or substantially all of its properties and assets to another Person unless
(i) either (A) the Company shall be the continuing or surviving Person in such a
consolidation or merger or (B) the Person (if other than the Company) formed by
such consolidation or into which the Company is merged or to which all or
substantially all of the properties and assets of the Company are transferred
(the Company or such other Person being referred to as the "Surviving Person ")
shall be a corporation organized and validly existing under the laws of the
United States, any state thereof, or the District of Columbia, and shall
expressly assume, by an indenture supplement, all the obligations of the Company
under the Securities and the Indenture, (ii) immediately after the transaction
and the incurrence or anticipated incurrence of any Indebtedness to be incurred
in connection therewith, no Event of Default will exist, and (iii) an Officer's
Certificate has been delivered to the Trustee to the effect that the conditions
set forth in the preceding clauses (i) and (ii) have been satisfied and an
Opinion of Counsel (from a counsel who shall not be an employee of the Company)
has been delivered to the Trustee to the effect that the conditions set forth in
the preceding clause (i) have been satisfied.
II-75
<PAGE> 69
(b) The Surviving Person will succeed to and be substituted
for the Company with the same effect as if it had been named herein as a party
hereto, and thereafter the predecessor corporation will be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE XII.
SATISFACTION AND DISCHARGE OF INDENTURE
Section 12.01. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture will upon a Company Request cease to be of
further effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense of the Company, will execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when: (a) either (i) all
Securities theretofore authenticated and delivered (other than (A) Securities
which have been destroyed, lost, or stolen and which have been replaced or paid
as provided in Section 2.07 and (B) Securities for the payment of which money
has theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust, as
provided in Section 6.03) have been delivered to the Trustee for cancellation or
(ii) all such Securities not theretofore delivered to the Trustee for
cancellation (A) have become due and payable, (B) will become due and payable at
their Stated Maturity within one year, or (C) are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the
Company, and the Company, in the case of clause (A), (B), or (C) above, has
deposited or caused to be deposited with the Trustee as trust funds in trust for
such purpose an amount sufficient to pay and discharge the entire indebtedness
on such Securities not theretofore delivered to the Trustee for cancellation,
for principal and any premium and interest to the date of such deposit (in the
case of Securities which have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be; (b) the Company has paid or caused to be
paid all other sums payable hereunder by the Company; and (c) the Company has
delivered to the Trustee an Officer's Certificate and an Opinion of Counsel,
each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 9.06, the obligations of
the Company to any Authenticating Agent under Section 9.13, and, if money shall
have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of
this Section 12.01, the obligations of the Trustee under Sections 6.03(e) and
12.02, will survive.
Section 12.02. APPLICATION OF TRUST MONEY.
Subject to provisions of Section 6.03(e), all money deposited
with the Trustee pursuant to Section 12.01 will be held in trust and applied by
it, in accordance with
II-76
<PAGE> 70
the provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal and any premium and interest for whose payment such money has been
deposited with the Trustee.
ARTICLE XIII.
MISCELLANEOUS PROVISIONS.
Section 13.01. SUCCESSORS AND ASSIGNS OF COMPANY BOUND BY INDENTURE.
All the covenants, stipulations, promises, and agreements in
this Indenture contained by or on behalf of the Company will bind its successors
and assigns, whether so expressed or not.
Section 13.02. SERVICE OF REQUIRED NOTICE TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice,
consent, waiver, Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with (a) the Trustee
by any Holder or by the Company will be sufficient for every purpose hereunder
if made, given, furnished, or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust Department or (b) the Company
by the Trustee or by any Holder will be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to the Company addressed to it at 4500 Dorr Street,
Toledo, Ohio 43615, Attention: Corporate Secretary, or at any other address
previously furnished in writing to the Trustee by the Company.
Section 13.03. SERVICE OF REQUIRED NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any
event, such notice will be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Security Register,
not later than the latest date (if any, and not earlier than the earliest date
(if any), 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 will affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver will be the equivalent of such notice. Waivers of notice by Holders
will be filed with the Trustee, but such filing will 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 will be impracticable to give such notice by mail, then such
notification as may be made with the approval of the Trustee will constitute a
sufficient notification for every purpose hereunder.
II-77
<PAGE> 71
Section 13.04. INDENTURE AND SECURITIES TO BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
This Indenture and the Securities will be deemed to be a
contract made under the laws of the State of New York, and for all purposes will
be construed in accordance with the laws of said State without giving effect to
principles of conflict of laws of such State.
Section 13.05. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee
to take any action under any of the provisions of this Indenture, the Company
will furnish to the Trustee such certificates and opinions as may be required
under the Trust Indenture Act. Each such certificate or opinion will be given in
the form of an Officer's Certificate, if to be given by an officer of the
Company, or an Opinion of Counsel, if to be given by counsel, and will comply
with the requirements of the Trust Indenture Act and any other requirements set
forth in this Indenture.
Section 13.06. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents. 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 13.07. PAYMENTS DUE ON NON-BUSINESS DAYS.
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 (other than a provision of the Securities of any series which
specifically states that such provision will apply in lieu of this Section
13.07)) payment of interest or principal (and premium, if any) 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,
PROVIDED that interest will accrue for the period from and after such Interest
Payment Date, Redemption Date, or Stated Maturity, as the case may be.
Section 13.08. PROVISIONS REQUIRED BY TRUST INDENTURE ACT TO CONTROL.
II-78
<PAGE> 72
If any provision of this Indenture limits, qualifies, or
conflicts with the duties imposed on any Person by Sections 310 to and including
317 of the Trust Indenture Act (including provisions automatically deemed
included in this Indenture pursuant to the Trust Indenture Act unless this
Indenture provides that such provisions are excluded), which are deemed to be a
part of and govern this Indenture, whether or not contained herein, then such
imposed duties will control.
Section 13.09. INVALIDITY OF PARTICULAR PROVISIONS.
In case any one or more of the provisions contained in this
Indenture or in the Securities is for any reason held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability
will not affect any other provision of this Indenture or of the Securities, but
this Indenture and such Securities will be construed as if such invalid or
illegal or unenforceable provision had never been contained herein or therein.
Section 13.10. INDENTURE MAY BE EXECUTED IN COUNTERPARTS.
This instrument may be executed in any number of counterparts,
each of which will be an original, but such counterparts will together
constitute but one and the same instrument.
Section 13.11. ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice,
consent, waiver, or other action provided or permitted by this Indenture to be
given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action will become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent will be sufficient for any
purpose of this Indenture and (subject to Section 9.01) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section
13.11.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit will also constitute sufficient proof of
his authority. The fact and date of the execution of any such instrument or
writing, or the
II-79
<PAGE> 73
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 will be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver, or other Act of the Holder of any Security will bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange thereof or in lieu thereof
in respect of anything done, omitted, or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(e) The Company may, in the circumstances permitted by the
Trust Indenture Act, set any day as the record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to give
or take any request, demand, authorization, direction, notice, consent, waiver,
or other action provided or permitted by this Indenture to be given or taken by
Holders of Securities of such series. With regard to any record date set
pursuant to this paragraph, the Holders of Outstanding Securities of the
relevant series on such record date (or their duly appointed agents), and only
such Persons, will be entitled to give or take the relevant action, whether or
not such Holders remain Holders after such record date. With regard to any
action that may be given or taken hereunder only by Holders of a requisite
principal amount of Outstanding Securities of any series (or their duly
appointed agents) and for which a record date is set pursuant to this paragraph,
the Company may, at its option, set an expiration date after which no such
action purported to be given or taken by any Holder will be effective hereunder
unless given or taken on or prior to such expiration date by Holders of the
requisite principal amount of Outstanding Securities of such series on such
record date (or their duly appointed agents). On or prior to any expiration date
set pursuant to this paragraph, the Company may, on one or more occasions at its
option, extend such date to any later date. Nothing in this paragraph will
prevent any Holder (or any duly appointed agent thereof) from giving or taking,
after any such expiration date, any action identical to, or, at any time,
contrary to or different from, the action or purported action to which such
expiration date relates, in which event the Company may set a record date in
respect thereof pursuant to this paragraph. Nothing in this Section 13.11(e)
will be construed to render ineffective any action taken at any time by the
Holders (or their duly appointed agents) of the requisite principal amount of
Outstanding Securities of the relevant series on the date such action is so
taken. Notwithstanding the foregoing or the Trust Indenture Act, the Company
will not set a record date for, and the provisions of this Section 13.1l(e) will
not apply with respect to, any notice, declaration, or direction referred to in
the next paragraph.
(f) Upon receipt by the Trustee from any Holder of Securities
of a particular series of (a) any notice of default or breach referred to in
Section 8.01(a)(iv) or 8.01(a)(v) with respect to Securities of such series, if
such default or breach has occurred and is continuing and the Trustee shall not
have given such notice to the Company, (b) any declaration of acceleration
referred to in Section 8.01(b), if an Event of Default with respect
II-80
<PAGE> 74
to Securities of such series has occurred and is continuing and the Trustee
shall not have given such a declaration to the Company, or (c) any direction
referred to in Section 8.06 with respect to Securities of such series, if the
Trustee shall not have taken the action specified in such direction, then a
record date will automatically and without any action by the Company or the
Trustee be set for determining the Holders of Outstanding Securities of such
series entitled to join in such notice, declaration, or direction, which record
date will be the close of business on the tenth calendar day following the day
on which the Trustee receives such notice, declaration, or direction. Promptly
after such receipt by the Trustee, and in any case not later than the fifth
calendar day thereafter, the Trustee will notify the Company and the Holders of
Outstanding Securities of such series of any such record date so fixed. The
Holders of Outstanding Securities of such series on such record date (or their
duly appointed agents), and only such Persons, will be entitled to join in such
notice, declaration, or direction, whether or not such Holders remain Holders
after such record date; PROVIDED that, unless such notice, declaration, or
direction shall have become effective by virtue of Holders of the requisite
principal amount of Outstanding Securities of such series on such record date
(or their duly appointed agents) having joined therein on or prior to the 90th
calendar day after such record date, such notice, declaration, or direction will
automatically and without any action by any Person be cancelled and of no
further effect. Nothing in this Section 13.11(f) will be construed to prevent a
Holder (or a duly appointed agent thereof) from giving, before or after the
expiration of such 90-day period, a notice, declaration, or direction contrary
to or different from, or, after the expiration of such period, identical to, the
notice, declaration, or direction to which such record date relates, in which
event a new record date in respect thereof will be set pursuant to this Section
13.11(f). Nothing in this Section 13.11(f) will be construed to render
ineffective any notice, declaration, or direction of the type referred to in
this Section 13.11(f) given at any time to the Trustee and the Company by
Holders (or their duly appointed agents) of the requisite principal amount of
Outstanding Securities of the relevant series on the date such notice,
declaration, or direction is so given.
(g) Without limiting the foregoing, a Holder entitled
hereunder to give or take any action hereunder with regard to any particular
Security may do so with regard to all or any part of the principal amount of
such Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any different part of such
principal amount.
Section 13.12. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of
Contents are for convenience only and will not affect the construction hereof.
Section 13.13. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or
implied, will give to any Person, other than the parties hereto and their
successors hereunder and the Holders any benefit or any legal or equitable
right, remedy, or claim under this Indenture.
II-81
<PAGE> 75
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.
[Seal] DANA CORPORATION
By: /s/ John S. Simpson
-------------------------
[Seal] Name: John S. Simpson
------------------------
Title: Chief Financial Officer
-----------------------
Attest:
/s/ Sue A. Griffin
- ------------------------------
Name: Sue A. Griffin
------------------------
Title: Assistant Secretary
------------------------
CITIBANK, N.A.
By: /s/ Arthur W. Aslanian
-------------------------
[Seal] Name: Arthur W. Aslanian
------------------------
Title: Vice President
-----------------------
Attest:
/s/ Florence Miller
- -----------------------------
Name: Florence Miller
-----------------------
Title: Senior Trust Officer
-----------------------
II-82
<PAGE> 76
STATE OF OHIO )
------------------
) ss.:
COUNTY OF LUCAS )
------------------
On this 12th day of December, 1997, before me personally came
John S. Simpson, to me known, who, being by me duly sworn, did depose and say
that he is Chief Financial Officer, of Dana Corporation, one of the entities
described in and which executed the above instrument; that he knows the seal of
said entity; that the seal or a facsimile thereof affixed to said instrument is
such seal; that it was so affixed by authority of the Board of directors of
said entity, and that he signed his name thereto by like authority.
/s/ Susan S. Stewart
-------------------------------
Notary Public
II-83
<PAGE> 77
STATE OF NEW YORK )
------------------
) ss.:
COUNTY OF NEW YORK )
------------------
On this 12th day of December, 1997, before me personally came
Arthur W. Aslanian, to me known, who, being by me duly sworn, did depose and
say that he/she is Vice President, of Citibank, N.A., one of the entities
described in and which executed the above instrument; that he/she knows the
seal of said entity; that the seal or a facsimile thereof affixed to said
instrument is such seal; that it was so affixed by authority of the Board of
Directors of said entity, and that he/she signed his/her name thereto by like
authority.
/s/ Jeffrey Berger
----------------------------
Notary Public
II-84
<PAGE> 1
<TABLE>
<CAPTION>
EXHIBIT 12
DANA CORPORATION
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(AMOUNTS IN MILLIONS, EXCEPT RATIO DATA)
NINE MONTHS ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
------------------------------------------------------ --------------
1992 1993 1994 1995 1996 1996 1997
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Income before minority interest
and equity in earnings of affiliates $ 28.4 $ 138.3 $ 234.2 $ 332.0 $ 325.4 $ 249.2 $ 280.4
Income taxes (2.1) 89.6 157.4 181.2 166.3 139.8 251.9
Remitted equity in affiliates 38.3 14.3 8.5 0.8 0.4 -- 13.5
-------- -------- -------- -------- -------- -------- --------
64.6 242.2 400.1 514.0 492.1 389.0 545.8
-------- -------- -------- -------- -------- -------- --------
Fixed Charges:
Interest expense 168.1 137.3 113.4 146.4 159.0 116.4 144.2
Appropriate portion (1/3) of
rentals 18.1 19.3 21.6 23.6 24.9 19.5 19.0
-------- -------- -------- -------- -------- -------- --------
186.2 156.6 135.0 170.0 183.9 135.9 163.2
-------- -------- -------- -------- -------- -------- --------
Earnings before income taxes,
fixed charges and including
remitted equity in affiliates $ 250.8 $ 398.8 $ 535.1 $ 684.0 $ 676.0 $ 524.9 $ 709.0
======== ======== ======== ======== ======== ======== ========
Ratio of earnings to fixed charges 1.3x 2.5x 4.0x 4.0x 3.7x 3.9x 4.3x
</TABLE>
II-85
<PAGE> 1
Exhibit 23-A
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
January 21, 1997, which appears on page 22 of the 1996 Annual Report to
Shareholders of Dana Corporation, which is incorporated by reference in Dana
Corporation's Annual Report on Form 10-K for the year ended December 31, 1996.
We also consent to the incorporation by reference of our report on the Financial
Statement Schedule, which appears on page 15 of such Annual Report on Form 10-K.
We also consent to the reference to us under the heading "Experts" in such
Prospectus.
PRICE WATERHOUSE LLP
Toledo, Ohio
December 12, 1997
II-86
<PAGE> 1
Exhibit 24
POWER OF ATTORNEY
The undersigned directors and/or officers of Dana Corporation (the "Company")
hereby appoint Sue A. Griffin, Charles W. Hinde, Southwood J. Morcott, John S.
Simpson, and Martin J. Strobel, and each of them severally, as their true and
lawful attorneys-in-fact, (i) to execute, in their names and capacities as
directors and/or officers of the Company, one or more registration statements on
the appropriate forms (including Forms S-3, 8-A and under Rule 462), and all
exhibits, amendments and supplements thereto, to register the Common Stock and
Debt Securities (and any other securities which may be issuable upon the
exchange, conversion or redemption, if any, of the Debt Securities) of the
Company authorized for issuance pursuant to resolutions approved by the
Company's Board of Directors on October 20, 1997, and (ii) to file, in the name
and on behalf of the Company, such registration statements and any related
documents with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Act") and/or the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
This Power of Attorney automatically ends as to each appointee upon the
termination of his or her service with Dana.
In witness whereof, the undersigned have executed this instrument on October 20,
1997.
/s/ B. F. Bailar /s/ R. B. Priory
- ----------------- -----------------
B.F. Bailar R. B. Priory
/s/ E. M. Carpenter /s/ J. D. Stevenson
- ------------------- -------------------
E. M. Carpenter J. D. Stevenson
/s/ E. Clark /s/ T. B. Sumner, Jr.
- ------------ ---------------------
E. Clark T. B. Sumner, Jr.
/s/ G. H. Hiner /s/ S. A. Griffin
- --------------- -----------------
G. H. Hiner S. A. Griffin
/s/ J. M. Magliochetti /s/ C. W. Hinde
- ---------------------- ----------------
J. M. Magliochetti C. W. Hinde
/s/ M. R. Marks /s/ J. S. Simpson
- --------------- -----------------
M. R. Marks J. S. Simpson
/s/ S. J. Morcott /s/ M. J. Strobel
- ----------------- -----------------
S. J. Morcott M. J. Strobel
II-87
<PAGE> 1
Exhibit 25
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an application to determine eligibility of a Trustee
pursuant to Section 305 (b)(2) ____
------------------------
CITIBANK, N.A.
(Exact name of trustee as specified in its charter)
13-5266470
(I.R.S. employer
identification no.)
399 Park Avenue, New York, New York 10043
(Address of principal executive office) (Zip Code)
-----------------------
Dana Corporation
(Exact name of obligor as specified in its charter)
Commonwealth of Virginia 34-4361040
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
4500 Dorr Street
Toledo, Ohio 43615
(Address of principal executive offices) (Zip Code)
-------------------------
Senior Securities
(Title of the indenture securities)
II-88
<PAGE> 2
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Name Address
---- -------
Comptroller of the Currency Washington, D.C.
Federal Reserve Bank of New York New York, NY
33 Liberty Street
New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 16. List of Exhibits.
List below all exhibits filed as a part of this Statement of
Eligibility.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as exhibits hereto.
Exhibit 1 - Copy of Articles of Association of the Trustee, as now
in effect. (Exhibit 1 to T-1 to Registration Statement No. 2-79983)
Exhibit 2 - Copy of certificate of authority of the Trustee to
commence business. (Exhibit 2 to T-1 to Registration Statement No.
2-29577).
Exhibit 3 - Copy of authorization of the Trustee to exercise
corporate trust powers. (Exhibit 3 to T-1 to Registration Statement
No. 2-55519)
Exhibit 4 - Copy of existing By-Laws of the Trustee. (Exhibit 4 to
T-1 to Registration Statement No. 33-34988)
Exhibit 5 - Not applicable.
II-89
<PAGE> 3
Exhibit 6 - The consent of the Trustee required by Section 321(b) of
the Trust Indenture Act of 1939. (Exhibit 6 to T-1 to Registration
Statement No. 33-19227.)
Exhibit 7 - Copy of the latest Report of Condition of Citibank, N.A.
(as of September 30, 1997 - attached)
Exhibit 8 - Not applicable.
Exhibit 9 - Not applicable.
------------------
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Citibank, N.A., a national banking association organized and existing
under the laws of the United States of America, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York and State of New York, on the 9th day of
December, 1997.
CITIBANK, N.A.
By /s/Arthur W. Aslanian
--------------------------------
Arthur W. Aslanian
Vice President
II-90
<PAGE> 4
Charter No. 1461
Comptroller of the Currency
Northeastern District
REPORT OF CONDITION
CONSOLIDATING
DOMESTIC AND FOREIGN
SUBSIDIARIES OF
CITIBANK, N.A.
of New York in the State of New York, at the close of business on September 30,
1997, published in response to call made by Comptroller of the Currency, under
Title 12, United States Code, Section 161. Charter Number 1461 Comptroller of
the Currency Northeastern District.
<TABLE>
<CAPTION>
ASSETS
THOUSANDS
OF DOLLARS
<S> <C>
Cash and balances due from de-
pository institutions:
Noninterest-bearing balances
and currency and coin ............................ $ 6,529,000
Interest-bearing balances ............................... 12,319,000
Held-to-maturity securities ............................. 0
Available-for-sale securities ........................... 28,477,000
Federal funds sold and
securities purchased under
agreements to resell .............................. 11,422,000
Loans and lease financing receiv-
ables:
Loans and Leases, net of un-
earned income .......................$ 151,679,000
LESS: Allowance for loan
and lease losses .................... 4,253,000
Loans and leases, net of un-
earned income, allowance,
and reserve ....................................... 147,426,000
Trading assets .......................................... 31,496,000
Premises and fixed assets (includ-
ing capitalized leases) ........................... 3,380,000
Other real estate owned ................................. 651,000
Investments in unconsolidated
subsidiaries and associated com-
panies ............................................ 1,284,000
Customers' liability to this bank
on acceptances outstanding ........................ 2,023,000
Intangible assets ....................................... 177,000
Other assets ............................................ 8,745,000
-------------
TOTAL ASSETS ............................................ $ 253,929,000
=============
LIABILITIES
Deposits:
In domestic offices ............................... $ 35,919,000
Noninterest-
bearing .............................$ 12,462,000
Interest-
bearing ............................. 23,457,000
-------------
In foreign offices, Edge and
Agreement subsidiaries, and
IBFs .............................................. 138,955,000
Noninterest-
bearing .................................9,790,000
Interest-
bearing ...............................129,165,000
------------
Federal funds purchased and
securities sold under agree-
ments to repurchase ............................... 6,161,000
Trading liabilities ..................................... 24,966,000
Other borrowed money (includes
mortgage indebtedness and obligations
under capitalized leases):
With a remaining maturity of one
year or less ...................................... 9,351,000
With a remaining maturity of more
than one year through three years ................. 2,916,000
With a remaining maturity of more
than three years .................................. 915,000
Bank's liability on acceptances ex-
ecuted and outstanding ............................ 2,024,000
Subordinated notes and
debentures .............................................. 5,400,000
Other liabilities ....................................... 9,856,000
-------------
TOTAL LIABILITIES ....................................... $ 236,463,000
=============
EQUITY CAPITAL
Perpetual preferred stock
and related surplus ............................... 0
Common stock ............................................ $ 751,000
Surplus ................................................. 7,387,000
Undivided profits and capital re-
serves ............................................ 9,254,000
Net unrealized holding gains (losses)
on available-for-sale securities .................. 737,000
Cumulative foreign currency
translation adjustments ........................... (663,000)
-------------
TOTAL EQUITY CAPITAL .................................... $ 17,466,000
=============
TOTAL LIABILITIES, LIMITED-
LIFE PREFERRED STOCK, AND
EQUITY CAPITAL .................................... $ 253,929,000
=============
</TABLE>
I, Roger W. Trupin, Controller of the above-named bank do hereby declare that
this Report of Condition is true and correct to the best of my knowledge and
belief.
ROGER W. TRUPIN
CONTROLLER
We, the undersigned directors, attest to the correctness of this Report of
Condition. We declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions and
is true and correct.
PAUL J. COLLINS
JOHN S. REED
WILLIAM R. RHODES
DIRECTORS
II-91
