<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 18, 2000
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM F-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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<TABLE>
<S> <C> <C>
UNITED DOMINION INDUSTRIES LIMITED CANADA 98-0125322
(Exact name of registrant as (State or other jurisdiction (I.R.S. Employer
specified in its of Identification Number)
charter -- guarantor of guaranteed incorporation or organization)
debt securities)
UNITED DOMINION HOLDINGS, INC. DELAWARE 56-2013566
(Exact name of registrant as (State or other jurisdiction (I.R.S. Employer
specified in its of Identification Number)
charter -- guarantor of guaranteed incorporation or organization)
debt securities)
UNITED DOMINION INDUSTRIES, INC. DELAWARE 98-0013789
(Exact name of registrant as (State or other jurisdiction (I.R.S. Employer
specified in its of Identification Number)
charter -- issuer of guaranteed debt incorporation or organization)
securities)
</TABLE>
2300 ONE FIRST UNION CENTER
301 SOUTH COLLEGE STREET
CHARLOTTE, NORTH CAROLINA 28202-6039
(704) 347-6800
(Address and telephone number of registrants' principal executive offices)
---------------------
RICHARD L. MAGEE
UNITED DOMINION INDUSTRIES LIMITED
2300 ONE FIRST UNION CENTER
301 SOUTH COLLEGE STREET
CHARLOTTE, NORTH CAROLINA 28202-6039
(704) 347-6800
(Name, address and telephone number of agent for service)
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WITH COPIES TO:
<TABLE>
<S> <C>
STEPHEN M. LYNCH B. ANDREW PICKENS, JR.
ROBINSON, BRADSHAW & HINSON, P.A. MCGUIRE, WOODS, BATTLE & BOOTHE LLP
101 NORTH TRYON STREET, SUITE 1900 100 NORTH TRYON STREET, SUITE 2900
CHARLOTTE, NORTH CAROLINA 28246 CHARLOTTE, NORTH CAROLINA 28202-4011
(704) 377-2536 (704) 373-8999
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this 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, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of earlier effective
registration statement for the same offering. [ ] ________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] ________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
<TABLE>
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1) UNIT(2) PRICE(2) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Guaranteed debt securities $200,000,000 100% $200,000,000 $52,800
of United Dominion
Industries, Inc.
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Guarantees of debt (3) (3) (3) None (4)
securities
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</TABLE>
(1) Or, if guaranteed debt securities are issued in a currency or composite
currency other than United States dollars, the amount in that currency which
will result in an aggregate initial offering price equal to $200,000,000.
(2) Estimated for the sole purpose of calculating the registration fee in
accordance with Rule 457(o) under the Securities Act of 1933.
(3) The debt securities of United Dominion Industries, Inc. being registered
will be guaranteed by United Dominion Industries Limited and United Dominion
Holdings, Inc. United Dominion Industries, Inc. is a direct subsidiary of
United Dominion Holdings, Inc. and a direct and indirect wholly owned
subsidiary of United Dominion Industries Limited.
(4) Pursuant to Rule 457(n), no separate fee is payable with respect to the
guarantees of the debt securities being registered. No separate
consideration will be received for the guarantees.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE> 2
The information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with
the Securities and Exchange Commission is effective. Neither this
prospectus nor any prospectus supplement is an offer to sell these
securities or a solicitation of an offer to buy these securities in any
state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED JANUARY 18, 2000
PROSPECTUS
$200,000,000
UNITED DOMINION INDUSTRIES, INC.
[LOGO]
GUARANTEED DEBT SECURITIES
UNCONDITIONALLY GUARANTEED BY
UNITED DOMINION INDUSTRIES LIMITED
AND
UNITED DOMINION HOLDINGS, INC.
GUARANTEED DEBT SECURITIES--
- We may use this prospectus from time to time to offer unsecured
guaranteed debt securities in one or more series.
- The guaranteed debt securities will be guaranteed by United Dominion
Holdings, Inc. and United Dominion Industries Limited, respectively the
direct and indirect parent corporation of United Dominion Industries,
Inc.
- The debt securities will be issued under the terms of an indenture, which
is described in this prospectus.
- The specific terms of each series of guaranteed debt securities issued
will be described in detail in a supplement to this prospectus.
- We may sell guaranteed debt securities directly to purchasers, through
underwriters, dealers or agents or through any combination of these
methods.
- A supplement to this prospectus will name any underwriters, dealers or
agents involved in the sale of our guaranteed debt securities and
describe their compensation.
- We are based in Charlotte, North Carolina and manufacture products for
industrial customers worldwide.
BEFORE MAKING ANY INVESTMENT IN US, YOU SHOULD CONSIDER CAREFULLY THE RISK
FACTORS BEGINNING ON PAGE 1 AND READ THE APPLICABLE SUPPLEMENT TO THIS
PROSPECTUS.
This prospectus may not be used to consummate sales of these guaranteed
debt securities unless accompanied by a prospectus supplement. The prospectus
supplement may update or change information contained in this prospectus.
Neither the Securities and Exchange Commission nor any state or Canadian
provincial securities commission has approved any of these securities or
determined that this prospectus or any supplement to it is accurate or complete.
Any representation to the contrary is a criminal offense.
-------------------------
The date of this prospectus is , 2000
<PAGE> 3
TABLE OF CONTENTS
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PAGE
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Risk Factors................................................ 1
Where You Can Find More Information; Incorporation by
Reference................................................. 3
Special Note of Caution Regarding Forward-Looking
Statements................................................ 4
The Company................................................. 6
The Offering................................................ 8
Prospectus Supplement....................................... 8
Use of Proceeds............................................. 8
Ratio of Earnings to Fixed Charges.......................... 9
Description of Guaranteed Debt Securities and Guarantees.... 10
Plan of Distribution........................................ 32
Legal Matters............................................... 33
Experts..................................................... 34
</TABLE>
<PAGE> 4
RISK FACTORS
In addition to the other information contained in this prospectus, you
should consider carefully the following risk factors before investing in any of
our guaranteed debt securities.
OUR SALES AND PROFITABILITY ARE SENSITIVE TO ECONOMIC CONDITIONS, AND SOME OF
OUR BUSINESSES ARE CYCLICAL AND SEASONAL.
Our sales and profitability are sensitive to domestic and international
economic conditions because we market industrial equipment and other products
principally to industrial and commercial customers. To a lesser extent, our
business is sensitive to cyclical swings in construction and capital spending.
In addition, our machinery businesses, which manufacture soil, asphalt and
landfill compactors and specialty agricultural equipment, and portions of our
other businesses are seasonal and have historically produced weaker results in
the first quarter of each calendar year, primarily because of adverse weather
conditions that affect the sales of those products during the winter months.
OUR SIGNIFICANT AND INCREASING INTERNATIONAL OPERATIONS EXPOSE US TO ADDITIONAL
RISKS.
International operations necessarily are subject to risks in addition to
those encountered in the United States and Canada. These additional risks,
including stability of governments, currency fluctuations and exchange controls,
export controls, tax changes, labor difficulties, price controls and other
governmental factors, are difficult to appraise and could significantly affect
our international businesses. We operate over 25 manufacturing facilities and
employ over 3,500 people outside the United States and Canada. In addition, we
are emphasizing the expansion of our international sales and operations as a key
element of our strategy.
OUR ACQUISITION STRATEGY INVOLVES RISKS IF ACQUISITIONS ARE COMPLETED.
Our strategy of continuing to grow by acquiring existing businesses
presents a number of risks, including:
- assumption of unanticipated liabilities and contingencies
- diversion of management's attention
- possible reduction of our earnings because of:
-- difficulties of integrating numerous acquired businesses
-- increased interest costs
Acquired businesses may not achieve the same levels of revenue, profit or
productivity as our existing operations and may not otherwise perform as we
expect. To make acquisitions, we might incur additional debt, issue additional
stock (which would dilute the relative stock holdings of our existing
shareholders), or both. Our ability to complete acquisitions depends on the
availability of acquisition candidates at suitable prices and the availability
of funds.
1
<PAGE> 5
WE HAVE RETAINED THE RISK OF POTENTIAL LIABILITIES OF BUSINESS UNITS WE HAVE
SOLD.
Over the past several years we have sold several significant business units
and have retained the risk of potential liabilities arising from events or
circumstances that occurred while we owned those businesses. Many of the
businesses we have sold in recent years, such as Varco-Pruden, a manufacturer of
metal buildings sold in 1997, and Dominion Bridge, a construction and
engineering company sold in 1994, participate in the construction industry. Our
liabilities related to those businesses may not arise for many years. In
addition, it is not possible to determine the amount, if any, of these potential
liabilities.
BECAUSE OF OUR HOLDING COMPANY STRUCTURE, WE ARE SUBJECT TO POSSIBLE LEGAL
RESTRICTIONS ON OUR SUBSIDIARIES' ABILITY TO PROVIDE FUNDS NECESSARY TO REPAY
THE GUARANTEED DEBT SECURITIES. ADDITIONALLY, CLAIMS OF CREDITORS OF OUR
SUBSIDIARIES MAY EFFECTIVELY BE SENIOR TO OUR GUARANTEED DEBT SECURITIES.
Our holding company structure results in the principal risks that our
subsidiaries may be restricted by contractual provisions or applicable laws from
providing us the cash that we need to pay holding company debt service
obligations, including payments on any guaranteed debt securities we offer under
this prospectus, and that in any liquidation, reorganization or insolvency
proceeding involving us, your claim as a holder of any guaranteed debt
securities we offer under this prospectus will be effectively subordinated to
the claims of holders of any indebtedness or preferred stock of our subsidiaries
(other than United Dominion Industries, Inc. and United Dominion Holdings,
Inc.). Our subsidiary companies conduct a substantial part of our business and
own a substantial part of our operating assets.
2
<PAGE> 6
WHERE YOU CAN FIND MORE INFORMATION; INCORPORATION BY REFERENCE
United Dominion Industries Limited files annual, quarterly and special
reports, proxy statements and other information with the Securities and Exchange
Commission (the "SEC") and the Canadian securities regulatory authorities. You
may read and copy (upon the payment of fees prescribed by the SEC) any document
that we file with the SEC at its public reference rooms in Washington, D.C. (450
Fifth Street, N.W. 20549), New York, New York, (7 World Trade Center, Suite 1300
10048) and Chicago, Illinois (500 West Madison Street, Suite 1400 60661). You
may call the SEC at 1-800-SEC-0330 for further information on the public
reference rooms. Because United Dominion Industries Limited, as a Canadian
foreign private issuer, is not required to file, and historically has not filed,
its reports electronically with the SEC, electronic filings are not available on
the SEC's EDGAR database. However, United Dominion Industries Limited does
electronically file its Annual Report on Form 10-K and its proxy statement (but
not its quarterly reports on Form 10-Q or current reports on Form 8-K) with
Canadian securities regulatory authorities and you may access those filings at
the web site maintained on behalf of the Canadian securities regulatory
authorities at http://www.sedar.com. We may in the future file reports
electronically with the SEC and, to the extent we do so, you may access those
reports at the web site maintained by the SEC at http://www.sec.gov. In
addition, our reports, proxy statements and other information filed with the SEC
may also be inspected at the offices of the New York Stock Exchange, 20 Broad
Street, New York, New York 10005.
The SEC allows us to "incorporate by reference" into this prospectus the
information United Dominion Industries Limited files with them. This means that
we can disclose important financial and other information in our SEC filings by
referring you to the documents containing this information. All information
incorporated by reference is part of this prospectus, unless that information is
updated and superseded by the information contained in this prospectus or by any
information filed subsequently that is incorporated by reference or by any
prospectus supplement. Any prospectus supplement or any information that we
subsequently file with the SEC that is incorporated by reference will
automatically update and supersede any previous information that is part of this
prospectus or any prior prospectus supplement. We incorporate by reference the
documents listed below and any future filings made by United Dominion Industries
Limited with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934 until we sell all the securities we offer with this
prospectus:
- Annual Report on Form 10-K for the year ended December 31, 1998;
- Quarterly Reports on Form 10-Q for the quarters ended March 31, 1999,
June 30, 1999 and September 30, 1999; and
- Current Report on Form 8-K dated January 18, 2000.
The financial statements included in these documents have been prepared in
accordance with Canadian generally accepted accounting principles, rather than
United States generally accepted accounting principles. Where required by the
SEC, these documents include information reconciling the financial statements to
United States generally accepted accounting principles. Except to the extent we
otherwise indicate, all financial statements of United Dominion Industries
Limited, and all information derived from those financial statements, included
in this prospectus have been prepared in accordance with Canadian generally
accepted accounting principles.
3
<PAGE> 7
This prospectus is part of a registration statement on Form F-3 that we
have filed with the SEC relating to the guaranteed debt securities. As permitted
by SEC rules, this prospectus does not contain all the information contained in
the registration statement and accompanying exhibits and schedules we file with
the SEC. You may refer to the registration statement, the exhibits and schedules
for more information about us and our guaranteed debt securities. The
registration statement, exhibits and schedules also are available at the SEC's
public reference rooms or through its EDGAR database on the internet.
You may obtain a copy of these filings, at no cost, by writing, telephoning
or e-mailing us at the following address:
United Dominion Industries Limited
2300 One First Union Center
301 South College Street
Charlotte, North Carolina 28202-6039
Attention: Corporate Communications
Telephone: (704) 347-6800
E-mail: [email protected]
United Dominion Holdings, Inc. and United Dominion Industries, Inc. are
consolidated subsidiaries of United Dominion Industries Limited. United Dominion
Holdings, Inc. and United Dominion Industries, Inc. do not file separate reports
with the SEC.
You should rely only on the information provided in this prospectus or any
prospectus supplement or that is incorporated by reference. We have not
authorized anyone else to provide you with different information. We are not
making an offer of these securities in any state or province where the offer is
not permitted. Information is accurate only as of the date of the documents
containing the information, unless the information specifically indicates that
another date applies.
As used in this prospectus, the terms "we", "us" and "our" refer to United
Dominion Industries Limited and its subsidiaries (including United Dominion
Holdings, Inc. and United Dominion Industries, Inc.), except when used in
describing the offer and sale of the guaranteed debt securities, in which case
those terms refer solely to United Dominion Industries, Inc. as the issuer of
the guaranteed debt securities and to United Dominion Industries Limited and
United Dominion Holdings, Inc. as the guarantors of the debt securities. Unless
otherwise specified, the terms of the guaranteed debt securities as described
herein apply to each of United Dominion Industries, Inc., United Dominion
Industries Limited and United Dominion Holdings, Inc.
SPECIAL NOTE OF CAUTION REGARDING FORWARD-LOOKING STATEMENTS
Some of the statements in (a) this prospectus under the caption "Risk
Factors," (b) any applicable prospectus supplement and (c) the documents
incorporated by reference into this prospectus may constitute "forward-looking
statements" within the meaning of federal securities laws. Forward-looking
statements are based on our management's beliefs, assumptions, and expectations
of our future economic performance, taking into account the information
currently available to them. These statements are not statements of historical
fact. Forward-looking statements involve risks and uncertainties that may cause
our actual results, performance or financial condition to be materially
different from the expectations of future results, performance or financial
condition we express or imply in any forward-looking
4
<PAGE> 8
statements. Some of the important factors that could cause our actual results,
performance or financial condition to differ materially from our expectations
are:
- Changes in global economic conditions
- Changes in the current business environment, both in North America and
abroad, including interest rates and consumer and capital spending
- Fluctuations in our raw material prices
- Increased competition and the introduction of new competitive products
- Changes in laws and regulations, including those affecting taxes and
environmental matters
- Technological developments and technological issues
- Continuation of the favorable environment in which to make acquisitions,
in North America and internationally, including regulatory requirements
and the availability of acquisition candidates at affordable prices
- Our ability to identify and complete acquisitions and successfully
integrate the businesses we acquire
- Other factors described in this prospectus, any prospectus supplement or
the documents United Dominion Industries Limited files with the SEC and
we incorporate by reference into this prospectus
When used in our documents or oral presentations, the words "anticipate,"
"estimate," "expect," "objective," "projection," "forecast," "goal" or similar
words are intended to identify forward-looking statements. We qualify any
forward-looking statements entirely by these cautionary factors.
5
<PAGE> 9
THE COMPANY
The guaranteed debt securities offered by this prospectus will be issued by
United Dominion Industries, Inc. and unconditionally guaranteed by United
Dominion Industries Limited and United Dominion Holdings, Inc. United Dominion
Industries Limited, the ultimate parent holding company of our organization, is
organized under the laws of Canada. United Dominion Holdings, Inc., a direct
wholly owned subsidiary of United Dominion Industries Limited organized under
the laws of Delaware, is a holding company with no operations or significant
assets other than its ownership of the capital stock of United Dominion
Industries, Inc. and other subsidiaries. United Dominion Industries, Inc. is
organized under the laws of Delaware and is a direct subsidiary of United
Dominion Holdings, Inc. and a direct and indirect wholly owned subsidiary of
United Dominion Industries Limited. These companies, directly or through
subsidiaries, manufacture proprietary engineered products for sale primarily to
industrial and commercial customers. Our operations are divided into four
business segments:
- Flow Technology
-- cooling towers for power generation, industrial uses, refrigeration
and HVAC
-- filters and dryers for compressed air systems
-- cast iron boilers for residential and commercial customers
-- valves, pumps, fittings, and integrated systems for sanitary (i.e.
food, beverage, dairy, pharmaceutical and cosmetics) and industrial
processing markets
-- submersible petroleum and water pumps
-- leak detection equipment
-- pipeline strainers and check, butterfly and plug valves
-- backflow prevention devices
- Machinery
-- soil, asphalt and landfill compactors
-- light equipment for concrete placement
-- tilling equipment, augers, grain drills and handling systems
- Specialty engineered products
-- steel frames and doors for commercial, industrial and institutional
markets
-- dock levelers, vehicle restraints and dock seals and shelters
-- electric resistance heaters for industrial, commercial and
residential markets
-- automatic and semi-automatic powered roller conveyor systems for
the corrugated and solid fiber carton industry
-- close-tolerance machining primarily for the aerospace industry
-- metal forming equipment
-- stackers, scissor lifts and tilters
6
<PAGE> 10
- Test Instrumentation
-- diagnostic tools, precision fastening systems and gauging devices
primarily for the automotive industry
-- carbide machined parts
-- scales and weighing systems
-- portable pipe and cable locators
-- line management and monitoring systems for the utilities and
telecommunications industries
-- hand-held electronic testing equipment used by tradesmen
-- refrigerant recovery systems
-- handheld refrigerant leak detection devices
-- environmental testing chambers
-- industrial ovens
-- electro-dynamic shakers for vibration testing
-- air supply systems for the automotive and food processing
industries
-- heat exchangers
-- air curtains
We sell our products in over 120 countries. These products are sold by our
operating units, including Marley Cooling Tower, Spig, Cofimico, Flair,
Weil-McLain, Waukesha Cherry-Burrell, Bran + Luebbe, Marley Pump, Mueller Steam,
CMB, BOMAG, Compaction America, Sunflower, Feterl, Richardton, Ceco, Trussbilt,
S. W. Fleming, Dominion Building Products/Amsco, Tex-Steel, Serco, Kelley, TKO,
Marley Electric Heating, C & M, Fenn Manufacturing, Lee Engineering, AIT,
Radiodetection, Amprobe/Promax, Lunaire, LDS, TMI and King.
We employ over 13,000 people at over 90 manufacturing locations in over 20
countries.
During the last five years, we have been involved in an active acquisition
and divestiture program to focus our operations on the manufacture of
proprietary engineered products. These acquisitions included the following:
- the acquisition in January 2000 of Kelley Company, Inc. (dock equipment)
- the separate acquisitions in 1999 of S. W. Fleming (steel doors), Bran +
Luebbe (metering pumps and analyzing equipment), TKO Doors (specialty
doors) and Riser-Bond (cable testing equipment) and other companies for a
total of approximately $155 million
- the separate acquisitions in 1998 of Radiodetection (portable pipe and
cable locators), Tex-Steel (custom steel doors and frames for use in
commercial and detention markets), APV Ice Cream (industrial ice cream
production equipment), C & M
7
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(powered roller conveyor systems), LDS (vibration test systems) and other
companies for a total of approximately $172 million
- the 1997 acquisition of Core Industries for approximately $302 million
and other acquisitions for a total of approximately $68 million -- Core
manufactured valves, strainers and backflow protection products,
agricultural equipment, electrical test and measurement equipment, and
integrated assembly systems
- the 1995 acquisition of Flair Corporation for approximately $201
million -- Flair manufactured regenerative and refrigerated air dryers,
specialty purification equipment, large air houses, and filters
The larger divestitures included:
- the 1997 sale of Varco-Pruden, Centria and Windsor Door,
construction-related building products businesses, for approximately $240
million
- the 1995 sale of the Litwin businesses (engineering and construction of
refineries and chemical and petrochemical facilities) for approximately
$52 million
Our executive offices are located at 2300 One First Union Center, 301 South
College Street, Charlotte, North Carolina. Our telephone number is (704)
347-6800.
THE OFFERING
We may offer and sell from time to time, in one or more series, unsecured
guaranteed debt securities, which may consist of notes, debentures or other
evidences of indebtedness. These debt securities will be issued by United
Dominion Industries, Inc. and unconditionally and irrevocably guaranteed by
United Dominion Industries Limited and United Dominion Holdings, Inc.
The total initial offering prices of the guaranteed debt securities we may
offer and sell pursuant to this prospectus and supplements to it will not be
greater than $200 million (or the equivalent amount in a foreign currency or
currency unit at the time of sale). We will offer these securities in amounts,
at prices and on terms that we determine in light of market conditions at the
time of sale and specify in a prospectus supplement.
PROSPECTUS SUPPLEMENT
The prospectus supplement for each offering of guaranteed debt securities
will contain specific information and terms for that offering. The prospectus
supplement may also add to, update or change information contained in this
prospectus. It is important for you to consider the information contained in
this prospectus and the prospectus supplement in making your investment
decision.
USE OF PROCEEDS
Unless we state otherwise in a prospectus supplement, the net proceeds from
the sale of the guaranteed debt securities will be added to the general funds of
United Dominion Industries, Inc. and will be available for general corporate
purposes, which may include, but are not limited to, repayment of debt, working
capital, capital expenditures and acquisitions.
8
<PAGE> 12
RATIO OF EARNINGS TO FIXED CHARGES
The following table shows the consolidated ratio of earnings to fixed
charges of United Dominion Industries Limited and its subsidiaries for each of
the periods indicated.
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
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NINE MONTHS
ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
-------------------------------- -------------
1994 1995 1996 1997 1998 1999
---- ---- ---- ---- ---- -------------
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges.... 2.57 3.50 5.02 5.15 3.71 3.97
</TABLE>
For purposes of computing the ratio of earnings to fixed charges, earnings
consist of income from continuing operations before income taxes, minority
interest, and cumulative effect of accounting changes, plus fixed charges, minus
equity in income of less-than-50%-owned entities. Fixed charges consist of
interest expense, amortization of debt issuance costs, an estimate of the
interest cost in rental expense and, for 1994 and 1995, tax-effected cost of
preferred stock dividends.
The following table shows the consolidated ratio of earnings to fixed
charges of United Dominion Industries Limited and its subsidiaries for each of
the periods indicated, as reconciled to United States generally accepted
accounting principles:
RATIO OF EARNINGS TO FIXED CHARGES (U.S. GAAP RECONCILIATION)
<TABLE>
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NINE MONTHS
ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
-------------------------------- -------------
1994 1995 1996 1997 1998 1999
---- ---- ---- ---- ---- -------------
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Ratio of earnings to fixed charges.... 2.48 3.37 4.88 5.02 3.62 3.85
</TABLE>
9
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DESCRIPTION OF GUARANTEED DEBT SECURITIES AND GUARANTEES
We may offer and sell the guaranteed debt securities at various times in
one or more series under an indenture between us and the trustee, which is First
Union National Bank. References in this prospectus to the indenture include
amendments that may be made to the indenture from time to time. A copy of the
indenture is filed as an exhibit to the registration statement of which this
prospectus is a part.
The following summary sets forth general terms and provisions of the
guaranteed debt securities and the indenture. A prospectus supplement will
provide the particular terms of offered guaranteed debt securities and will
describe the extent, if any, to which the general terms and provisions described
in this prospectus do not apply to those particular securities. Because this is
a summary, it does not contain all the information that may be important to you.
You should read the entire indenture, including the definitions of terms, and
the applicable prospectus supplement before you make any investment decision.
Where this summary or any prospectus supplement refers to particular sections,
provisions or defined terms in the indenture, those sections, provisions or
defined terms are incorporated by reference into this summary or the applicable
prospectus supplement. Section references used in this summary are references to
the indenture.
The covenants in the indenture do not necessarily protect you from a
decline in our credit quality due to highly leveraged or other transactions in
which we may engage.
GENERAL
The indenture provides that we may offer and sell separate series of
guaranteed debt securities from time to time without limitation as to aggregate
principal amount. We may specify a maximum aggregate principal amount for the
guaranteed debt securities of any series; however, we may increase the specified
maximum aggregate principal amount by resolution of the board of directors of
United Dominion Industries, Inc. (Section 301) We will determine some of the
terms and provisions of the guaranteed debt securities, including terms relating
to maturity, principal and interest. These terms will not be inconsistent with
the Indenture.
The guaranteed debt securities will be our direct, unsecured obligations
and will rank on a parity with all of our current and future outstanding
unsecured and unsubordinated indebtedness. Except as described under "Certain
Covenants," the indenture does not limit us or any of our subsidiaries from
incurring more indebtedness or issuing more securities, and does not contain
financial or similar restrictions on us or any of our subsidiaries. Our rights
and the rights of our creditors, including holders of guaranteed debt
securities, to participate in any distribution of assets of any of our
subsidiaries upon the subsidiary's liquidation or reorganization or otherwise
are effectively subordinated to the claims of the subsidiary's creditors, except
to the extent that we or any of our creditors may be a creditor of that
subsidiary.
We may offer and sell the guaranteed debt securities of any series in
certificated form registered in the name of the debt security holder. If
provided in the applicable prospectus supplement, the guaranteed debt securities
may be represented in whole or part by a global security or securities, which
will be deposited with, or on behalf of, The Depository Trust Company, New York,
New York or other successor depositary that we may appoint, and registered in
the name of the depositary's nominee. The Depository Trust Company or other
depositary appointed by us is referred to in this prospectus as the
"depositary." Each debt
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security represented by a global security is referred to in this prospectus as a
"book-entry security." See "Book Entry Securities."
All guaranteed debt securities of one series need not be issued at the same
time and, unless otherwise provided, a series may be reopened, without notice to
or the consent of any holder, for issuances of additional guaranteed debt
securities of that series, and the additional guaranteed debt securities will be
consolidated and form a single series with those guaranteed debt securities.
(Section 301)
GUARANTEES
United Dominion Industries, Inc. (referred to in this section as the
"Issuer") will issue the guaranteed debt securities and United Dominion
Holdings, Inc. and United Dominion Industries Limited (referred to in this
section as the "Guarantors"), respectively the direct parent corporation of the
Issuer and the direct and indirect parent corporation of the Issuer, will,
jointly and severally, fully, unconditionally and irrevocably guarantee all of
the obligations under the guaranteed debt securities on an equal and ratable
basis subject to the limitation described in the next paragraph. If the Issuer
defaults in payment of the principal of, premium, if any, or interest on the
guaranteed debt securities, the Guarantors, jointly and severally, will be
unconditionally obligated to duly and punctually pay the same. Each Guarantor
that makes a payment or distribution under the guarantee will be entitled to
contribution from the other Guarantor in a pro rata amount based on the net
assets of each Guarantor determined in accordance with Canadian generally
accepted accounting principles.
Each guarantee (including the payment of principal of, premium, if any, and
interest on the guaranteed debt securities) will rank equally in right of
payment with all other existing and future unsecured and unsubordinated
indebtedness of that Guarantor and will rank senior in right of payment to all
subordinated indebtedness of that Guarantor.
In the event that any present or future tax, assessment, duty or other
governmental charge imposed by the country in which a Guarantor is organized, or
a political subdivision thereof, must be withheld or deducted from payments on
the principal of or interest or premium, if any, on the guaranteed debt
securities, the Guarantors are jointly and severally obligated to pay to holders
any additional amounts necessary to make every net payment of principal of,
interest or premium, if any, on the guaranteed debt securities at least equal to
the amount then due and payable under the terms of the guaranteed debt
securities. The Guarantors are not required to pay any additional amount,
however, if the required withholding or deduction is by reason of:
- the holder having, or having had, a personal or business connection with
the country in which the Guarantor is organized;
- a change in law or official practice of a relevant taxing authority that
becomes effective after the stated maturity date of the applicable
guaranteed debt securities;
- any estate, excise, inheritance, gift, sales, transfer, wealth or
personal property tax or any similar assessment or governmental charge;
or
- the failure of the holder to satisfy any statutory requirements or make a
declaration of non-residence or similar claim for exemption from the
relevant taxing authority.
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FRAUDULENT CONVEYANCE CONSIDERATIONS
It is possible that the amount for which each Guarantor is liable under its
respective guarantee of the guaranteed debt securities would be limited or
subject to avoidance by application of United States federal and state
fraudulent conveyance laws and other similar legal principles. If any of the
obligations of a Guarantor with respect to its guarantee are held unenforceable,
as a fraudulent conveyance or otherwise, claims of creditors of that Guarantor
effectively will have priority with respect to the assets and earnings of that
Guarantor over the claims of the holders of the guaranteed debt securities.
Although the standards will vary depending upon the law of the jurisdiction
applied, in general, if a court were to find that at the time of the issuance of
the guarantees of the guaranteed debt securities, a Guarantor issued its
guarantee with the intent of defrauding creditors or received less than fair
consideration or reasonably equivalent value for issuing its guarantee and among
other things, was insolvent or rendered insolvent by reason of issuing its
guarantee, was engaged in a business for which its remaining assets constituted
unreasonably small capital, or was acting with the intent or belief that it
would incur debts or liabilities beyond its ability to repay those debts or
liabilities as they mature or become due (as those terms are defined or
interpreted under applicable federal and state bankruptcy and fraudulent
conveyance statutes), then the court could avoid the payment of amounts by that
Guarantor pursuant to its guarantee and require the return of those payments to
that Guarantor. The guarantee could also become equitably subordinated to
general creditors of that Guarantor or could, under certain circumstances, be
invalidated. Management of each Guarantor believes that, after giving effect to
the application of the proceeds from any offering of guaranteed debt securities,
that Guarantor would not be considered insolvent at the time of the issuance of
its guarantee or rendered insolvent by reason of that issuance, would not be
considered to be engaged in a business or transaction for which its assets
constituted unreasonably small capital to carry on its business and would not be
considered to intend to incur, or believe that it would incur, debts or
liabilities beyond its ability to pay those debts or liabilities as they mature
or become due.
Applicable Canadian provincial corporate legislation provides that a direct
or indirect wholly-owned subsidiary or parent of an issuer existing under that
legislation is not prohibited from providing financial assistance to that issuer
by granting a guarantee. Notwithstanding that provision of Canadian law, United
Dominion Industries Limited's guarantee of the guaranteed debt securities could
be challenged by one of its creditors or shareholders on various grounds,
including that the granting of the guarantee was oppressive or unfairly
prejudicial to, or unfairly disregarded, their interests. A legal challenge of
the guarantee on oppression or other grounds under Canadian law may focus on,
among other things, the benefits, if any, realized by United Dominion Industries
Limited as a result of the issuance by the Issuer of the guaranteed debt
securities. To the extent that United Dominion Industries Limited's guarantee
was found to be oppressive, the guarantee could be unenforceable or other relief
could be granted that would subject the claims of holders of the guaranteed debt
securities to the prior payment of all other liabilities of United Dominion
Industries Limited. In such a case, after providing for all prior claims, there
could be insufficient assets of United Dominion Industries Limited to satisfy
the claims of holders of the guaranteed debt securities under its guarantee.
Management of United Dominion Industries Limited believes that its company's
guarantee is not oppressive and is not unfairly prejudicial to, and does not
unfairly disregard the interests of, its company's creditors or shareholders. In
addition, management of United Dominion Industries Limited believes that its
company is receiving substantial benefit from the issuance of the guaranteed
debt securities.
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TERMS OF GUARANTEED DEBT SECURITIES
The applicable prospectus supplement relating to each particular series of
offered guaranteed debt securities will provide the following terms or
additional provisions of the offered guaranteed debt securities:
- the title and designation of the offered guaranteed debt securities;
- any limit on the aggregate principal amount of the offered guaranteed
debt securities; however, the authorized aggregate principal amount of a
series of guaranteed debt securities may be increased above that amount
by a board resolution of the Issuer;
- the person to whom any interest on an offered debt security is payable,
if other than the person in whose name that security is registered;
- the price (expressed as a percentage of the aggregate principal amount of
offered guaranteed debt securities) at which the offered guaranteed debt
securities will be issued;
- the date or dates on which the principal of the offered guaranteed debt
securities will be payable or the method by which those dates will be
determined or extended;
- the rate or rates (which may be fixed or variable) at which the offered
guaranteed debt securities will bear interest, if any, or the method of
determination of those rates;
- the basis on which interest will be calculated if other than a 360-day
year consisting of twelve 30-day months;
- the date or dates from which the interest, if any, on the offered
guaranteed debt securities will accrue or the method of determination of
the date or dates;
- the dates on which the interest, if any, will be payable, or the method
by which those dates will be determined;
- the date on which payment of the interest, if any, will commence, or the
method by which that date will be determined;
- the regular record dates for the interest payment dates, if any, or the
method by which those dates will be determined;
- the place or places where the principal of, and any premium and interest
on, any of the offered guaranteed debt securities will be payable, where
the offered guaranteed debt securities may be presented for registration
of transfer or exchange, and where notices and demands to or upon us in
respect of the offered guaranteed debt securities may be made;
- the periods within or the dates, prices and terms and conditions on which
the offered guaranteed debt securities may be redeemed, in whole or in
part, at the option of the Issuer, and the manner in which any election
by the Issuer to redeem the offered guaranteed debt securities will be
evidenced (if other than by board resolution);
- the Issuer's obligation or right, if any, to redeem or purchase offered
guaranteed debt securities pursuant to any sinking fund, amortization or
analogous provisions, or at the option of a holder of guaranteed debt
securities to require such a redemption or purchase, and the periods
within, prices at, currency (including currency units) in which and the
other terms and conditions upon which the offered guaranteed debt
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securities will be redeemed or purchased, in whole or in part, pursuant
to any such obligation;
- the denominations in which any of the offered guaranteed debt securities
will be issuable, if other than denominations of $1,000 and any integral
multiple thereof;
- if other than the principal amount of the offered guaranteed debt
securities, the amount of offered guaranteed debt securities which will
be payable upon declaration of acceleration of the offered guaranteed
debt securities' maturity;
- if other than U.S. dollars, the currency (including composite currencies
or currency units) in which payment of principal of (and premium, if any)
and interest on the offered guaranteed debt securities will be payable
(and the manner in which the equivalent of the principal amount in U.S.
dollars is to be determined for any purpose, including for the purpose of
determining the principal amount deemed to be outstanding at any time);
- any currency (including composite currencies or currency units) other
than the stated currency of the offered guaranteed debt securities in
which the principal of (and premium, if any) and interest on the offered
guaranteed debt securities may, at our or the holders' of guaranteed debt
securities election, be payable, and the periods within, or the dates on,
and terms and conditions upon which that election may be made and the
amount so payable (or the manner in which that amount is to be
determined);
- if the amount of payments of principal of (and premium, if any) and
interest on the offered guaranteed debt securities may be determined with
reference to an index or pursuant to a formula (including by reference to
currency or interest rates), the manner in which those amounts will be
determined;
- if the principal amount payable at the stated maturity of any of the
offered guaranteed debt securities will not be determinable as of any one
or more dates prior to the stated maturity, the amount which will be
deemed to be the principal amount as of any such date for any purpose,
including the principal amount of the offered guaranteed debt securities
which will be due and payable upon any maturity other than the stated
maturity or which will be deemed to be outstanding as of any such date
(or, in any such case, the manner in which the deemed principal amount is
to be determined);
- whether any of the offered guaranteed debt securities will initially be
issuable in whole or in part in the form of a temporary global security
representing those guaranteed debt securities and provisions for the
exchange of the temporary global security for guaranteed debt securities
in certificated form;
- whether any of the offered guaranteed debt securities will be issuable in
whole or in part in the form of one or more global securities and, if so,
the respective depositaries for those global securities, the form of any
legend or legends to be borne by any such global security, any
circumstances under which any such global security may be exchanged, in
whole or in part, for guaranteed debt securities registered, and whether
and under what circumstances any transfer of that global security, in
whole or in part, may be registered, in the names of persons other than
the depositary for that global security or its nominee;
- whether any of the offered guaranteed debt securities will be subject to
optional interest rate reset provisions;
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- whether any of the offered guaranteed debt securities will be subject to
optional extension of maturity provisions;
- any addition to or change in the events of default applicable to any of
the offered guaranteed debt securities and any change in the right of the
trustee or the holders of any of the offered guaranteed debt securities
to declare the principal amount of any of the offered guaranteed debt
securities due and payable;
- any addition to or change in the covenants in the indenture applicable to
any of the offered guaranteed debt securities;
- the additions or changes, if any, to the indenture with respect to the
offered guaranteed debt securities as are necessary to permit or
facilitate the issuance of the offered guaranteed debt securities in
bearer form, registrable or not registrable as to principal, and with or
without interest coupons;
- our right, if any, to, and the manner in which we may, defease the
offered guaranteed debt securities or covenants under the indenture;
- the appointment of any paying agent for the offered guaranteed debt
securities;
- the terms of any right to convert or exchange the offered guaranteed debt
securities into any other of our securities or property and the additions
or changes, if any, to the indenture with respect to those offered
guaranteed debt securities to permit or facilitate that conversion or
exchange;
- the terms and conditions, if any, pursuant to which any of the offered
guaranteed debt securities are secured;
- any restriction or condition on the transferability of the offered
guaranteed debt securities; and
- any other terms relating to the offered guaranteed debt securities (which
are not inconsistent with the indenture). (Section 301)
Unless otherwise provided and except with respect to book-entry securities,
the principal of and premium, if any, and interest, if any, on the guaranteed
debt securities will be payable at the office of our security registrar.
However, at the Issuer's option, interest may be paid by mailing a check to, or
by wire transfer to, the holders of record of guaranteed debt securities
entitled to receive the interest. (Section 307) The Issuer has appointed the
trustee, First Union National Bank, as security registrar. (Sections 301 and
305)
For a description of payments of principal of, premium, if any, and
interest on, and transfer of, book-entry securities, and exchanges of global
securities representing book-entry securities, see "Book Entry Securities."
At the option of the holder of guaranteed debt securities, subject to the
terms of the indenture and the limitations applicable to book-entry securities,
guaranteed debt securities of each series will be exchangeable for other
guaranteed debt securities of the same series, of any authorized denomination
and of a like tenor and aggregate principal amount. (Section 305)
Unless otherwise indicated in the applicable prospectus supplement and
except with respect to book-entry securities, the Issuer will issue the
guaranteed debt securities only in fully registered form without coupons and in
denominations of $1,000 or any multiple
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of $1,000. Subject to the terms of the indenture and the limitations applicable
to global securities, the guaranteed debt securities may be presented for
exchange as provided above or for registration of transfer (duly endorsed or
with the form of transfer endorsed on the guaranteed debt securities duly
executed) at the office of the security registrar or at the office of any
transfer agent designated by us for that purpose. No service charge will be made
for any registration of transfer or exchange of offered guaranteed debt
securities, but we may require payment of an amount sufficient to cover any
applicable tax or other governmental charge. (Sections 301, 302 and 305)
Those transfers or exchanges will be effected when the security registrar
or the transfer agent is satisfied with the documents of title and identity of
the person making the request. The applicable prospectus supplement will name
any transfer agent (in addition to the security registrar) initially designated
by us for any guaranteed debt securities. (Section 305) The Issuer may at any
time designate additional transfer agents or rescind the designation of any
transfer agent or approve a change in the office through which any transfer
agent acts, except that the Issuer will be required to maintain a transfer agent
in each place of payment for the guaranteed debt securities of each series.
(Sections 305, 307 and 1002)
We may offer and sell guaranteed debt securities, including Original Issue
Discount Securities, at a substantial discount below their stated principal
amount. The applicable prospectus supplement may describe the U.S. federal
income tax consequences and other special considerations applicable to
guaranteed debt securities sold at an original issue discount. "Original Issue
Discount Security" means any security which provides for the declaration of
acceleration of the maturity of an amount less than the principal amount of the
security upon the occurrence and continuation of an event of default. (Section
101)
In addition, the applicable prospectus supplement may describe special U.S.
federal income tax or other considerations (if any) applicable to any guaranteed
debt securities which are denominated in a currency or currency unit other than
United States dollars.
CERTAIN COVENANTS
RESTRICTIONS ON LIENS. So long as any guaranteed debt securities are
outstanding, each of the Issuer and the Guarantors will not be permitted to
issue, assume or guarantee, and will not permit any restricted subsidiary to
issue, assume or guarantee, any indebtedness secured by a mortgage, pledge,
security interest, lien or encumbrance (referred to in this section as "liens")
of or on any of its or a restricted subsidiary's Principal Property, or on the
shares of stock or debt of any restricted subsidiary, whether owned now or
acquired subsequently. However, this restriction will not apply if we
effectively provide that the guaranteed debt securities (together, if we
determine, with any of our other indebtedness ranking equally with the
guaranteed debt securities) are secured by a lien ranking ratably with and equal
to (or at our option, prior to) the secured indebtedness. In any event, that
restriction will not apply to the following:
- liens existing on indebtedness on the date of the indenture;
- liens on any assets qualified as current assets in accordance with
Canadian generally accepted accounting principles that are the subject of
a transaction involving the sale or other transfer by us or our
subsidiaries of receivables that
(i) are produced in the ordinary course of business and are not
contingent on any performance or product guarantee, and provided that sale
or transfer does not involve the creation of any recourse obligation in
regard to those assets by us or any of our
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subsidiaries (other than with respect to title to, and other character of,
the assets sold or transferred), and
(ii) do not exceed $200,000,000 in face principal amount for those
assets at any time outstanding;
- liens on any assets of any corporation existing at the time that
corporation becomes a restricted subsidiary;
- liens on any assets existing at the time we or a restricted subsidiary
acquire those assets;
- liens to secure the payment of all or any part of the purchase price of
those assets upon the acquisition of those assets by us or a restricted
subsidiary;
- liens to secure any indebtedness incurred, assumed or guaranteed by us or
a restricted subsidiary prior to, at the time of, or within 180 days
after an acquisition of assets (or in the case of real property, the
completion of construction (including any improvements on an existing
asset) or commencement of full operation of the asset, whichever is
later) which indebtedness is incurred, assumed or guaranteed for the
purpose of financing all or any part of the purchase price or, in the
case of real property, construction or improvements on the asset.
However, in the case of such an acquisition, construction or improvement,
the lien will not apply to any of our or a restricted subsidiary's
Principal Property or shares of stock or debt of a restricted subsidiary
owned prior to the acquisition, construction or improvement, other than,
in the case of any construction or improvement, any real property on
which the property constructed, or the improvement, is located;
- liens on any assets to secure indebtedness of a restricted subsidiary to
us or to any wholly owned restricted subsidiary;
- liens on any assets of a corporation existing at the time that
corporation is merged into or consolidated with us or a restricted
subsidiary or at the time we or a restricted subsidiary purchase, lease
or otherwise acquire all or substantially all of the assets of a
corporation or firm;
- liens on any of our or a restricted subsidiary's assets in favor of the
United States or any State, or any department, agency or instrumentality
or political subdivision of the United States or any State, or in favor
of any other country, or any political subdivision of the United States
or any State, to secure partial, progress, advance or other payments
pursuant to any contract or statute or to secure any indebtedness
incurred or guaranteed for the purpose of financing all or any part of
the purchase price (or, in the case of real property, the cost of
construction) of the assets subject to those liens (including, but not
limited to, liens incurred in connection with pollution control,
industrial revenue or similar financings);
- mechanics', materialmen's, carriers', warehousemen's, or similar liens
arising in the ordinary course of business (including in the construction
of facilities) relating to obligations not due or which are being
contested;
- deposits to secure the performance of bids, trade contracts (other than
for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred
in the ordinary course of business and not in connection with the
borrowing of money;
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- liens for taxes, assessments or governmental charges not due or being
contested, landlords' liens, tenants' rights under leases and subleases,
zoning restrictions, easements, rights of way and other restrictions of
record on the use of Principal Property and defects in title arising or
incurred in the ordinary course of business, and similar liens not
materially impairing the use or value of the property involved;
- any extension, renewal or replacement (or successive extensions, renewals
or replacements) in whole or in part of any lien referred to in the
preceding clauses of this section; however, the principal amount of
indebtedness secured by a lien will not exceed the principal amount of
the secured indebtedness at the time of the extension, renewal or
replacement, and that the extension, renewal or replacement will be
limited to all or a part of the assets which secured the lien (plus
improvements and construction on real property);
- any attachment or judgment lien being contested in good faith, unless the
judgment it secures has not, within 60 days after the entry of that
judgment, been discharged or execution of that judgment stayed pending
appeal, or has not been discharged within 60 days after the expiration of
any such stay; and
- liens not permitted by the preceding clauses of this section if at the
time of, and after giving effect to, the creation or assumption of any
such lien, the aggregate amount of all of our or the restricted
subsidiaries' indebtedness secured by all of those liens not permitted by
the preceding clauses of this section, together with the Attributable
Debt relating to Sale and Lease-Back Transactions permitted by the
indenture, does not exceed 15% of Consolidated Net Assets, as those terms
are defined below. (Section 1008)
LIMITATION ON INDEBTEDNESS OF RESTRICTED SUBSIDIARIES. We will not permit
any restricted subsidiary other than United Dominion Industries, Inc. and United
Dominion Holdings, Inc. to incur any indebtedness (other than indebtedness to us
or to a wholly owned subsidiary) if, immediately after the incurrence or
assumption of the indebtedness, the aggregate outstanding principal amount of
all indebtedness of the restricted subsidiaries (other than United Dominion
Industries, Inc. and United Dominion Holdings, Inc.) would exceed 25% of
Consolidated Net Assets; provided that, in any event, a restricted subsidiary
may incur indebtedness to extend, renew or replace indebtedness of that
restricted subsidiary to the extent that the principal amount of the
indebtedness incurred does not, immediately prior to the extension, renewal or
replacement, exceed the principal amount of the indebtedness extended, renewed
or replaced, plus any premium, accrued and unpaid interest or capitalized
interest payable on that indebtedness. (Section 1009)
RESTRICTIONS ON SALE AND LEASE-BACK TRANSACTIONS. The indenture further
provides that we will not, and will not permit any restricted subsidiary to,
lease any Principal Property, other than with a lease for a term (including
renewal rights) for three years or less, whereby we or the restricted subsidiary
sell or transfer the Principal Property (referred to as a "Sale and Lease-Back
Transaction"), unless:
- we or any restricted subsidiary would, at the time of entering into a
Sale and Lease-Back Transaction, be entitled to incur indebtedness
secured by a lien on the Principal Property to be leased in an amount at
least equal to the Attributable Debt in respect of the Sale and
Lease-Back Transaction without equally and ratably securing the
guaranteed debt securities pursuant to the indenture; or
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- we promptly inform the trustee of the transaction, the proceeds of the
sale of the Principal Property to be leased are at least equal to the
fair value of the Principal Property (as determined by the board of
directors of the Issuer or the applicable Guarantor), and an amount equal
to the net proceeds from the sale of the Principal Property is applied,
within 180 days of the effective date of the Sale and Lease-Back
Transaction, to the purchase or acquisition (or, in the case of property,
the construction) of property or assets or to the retirement of
guaranteed debt securities or our or a consolidated restricted
subsidiary's Funded Indebtedness ranking on a parity with or senior to
the guaranteed debt securities. (Section 1010)
CONSOLIDATION, MERGER AND SALE OF ASSETS
We may, without the consent of the holders of the guaranteed debt
securities, consolidate with, merge or amalgamate into any other person or
transfer or lease all or substantially all of our properties or assets to any
person, provided that:
- the successor is a corporation, partnership, trust or other entity
organized and validly existing under the laws of any United States or
Canadian jurisdiction;
- the successor assumes our obligations on the guaranteed debt securities
under the indenture;
- immediately after giving effect to the transaction no event of default,
and no event which, after notice or lapse of time or both, would become
an event of default, will have occurred and be continuing;
- we have delivered the certificates and opinions required under the
indenture to the trustee; and
- other conditions are met. (Sections 801 and 802)
APPLICABILITY OF COVENANTS. Any series of guaranteed debt securities may
provide that any one or more of the covenants described above will not be
applicable to that series of securities. (Section 1012)
CERTAIN DEFINITIONS (SECTION 101). Set forth below are definitions of some
of the terms used in this section of the prospectus.
"ATTRIBUTABLE DEBT" when used in connection with a Sale and Lease-Back
transaction referred to above, means, as of any particular time, the aggregate
of present values (discounted at a rate per annum equal to the average interest
borne by all outstanding guaranteed debt securities determined on a weighted
average basis and compounded semi-annually) of our or any of our subsidiaries'
obligations for net rental payments during the remaining term of the lease
(including any period for which a lease has been extended or may, at the option
of the lessor, be extended).
- The term "net rental payments" under any lease of any period means the
sum of the rental and other payments required to be paid in that period
by the lessee, not including, however, any amounts required to be paid by
the lessee (whether or not designated as rental or additional rental) on
account of maintenance and repairs, reconstruction, insurance, taxes,
assessments, water rates or similar charges required to be paid by the
lessee or any amounts required to be paid by the lessee contingent on the
amount of sales, maintenance and repairs, reconstruction, insurance,
taxes, assessments, water rates or similar charges.
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"CONSOLIDATED NET ASSETS" means at any date, the total assets appearing on
the most recently prepared consolidated balance sheet of United Dominion
Industries Limited and its subsidiaries as of the end of a fiscal quarter,
prepared in accordance with Canadian generally accepted accounting principles at
the time of calculation, less all current liabilities as shown on that balance
sheet.
"CONSOLIDATED NET TANGIBLE ASSETS" means at any date, the total assets
appearing on the most recently prepared consolidated balance sheet of United
Dominion Industries Limited and its subsidiaries as of the end of a fiscal
quarter, prepared in accordance with Canadian generally accepted accounting
principles at the time of calculation, less (a) all current liabilities as shown
on that balance sheet and (b) intangible assets.
- "Intangible assets" means the value (net of any applicable reserves), as
shown on or reflected in such balance sheet of:
- all trade names, trademarks, licenses, patents, copyrights and
goodwill;
- organizational costs; and
- deferred charges (other than prepaid items such as insurance, taxes,
interest, commissions, rents and similar items and tangible assets
being amortized); but in no event will the term "intangible assets"
include product development costs.
"FUNDED INDEBTEDNESS" means any indebtedness maturing by its terms more
than one year from the date of its determination, including any indebtedness
renewable or extendible at the option of the obligor to a date later than one
year from the date of its determination.
"INDEBTEDNESS" means:
- all obligations for borrowed money;
- all obligations evidenced by bonds, debentures, notes or other similar
instruments;
- all obligations in respect of letters of credit or bankers acceptances or
similar instruments (or reimbursement obligations relating to those
instruments);
- all obligations to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business;
- all obligations as lessee which are capitalized in accordance with
Canadian generally accepted accounting principles at the time of
calculation; and
- all indebtedness of others that we or any of the subsidiaries guarantee
or for which we or any of the subsidiaries are otherwise responsible or
liable (whether by agreement to purchase indebtedness of, or to supply
funds or to invest in, others).
"PRINCIPAL PROPERTY" means any manufacturing or processing plant, building,
structure or other facility of any character (together with the land on which it
is erected and improvements and fixtures comprising a part of it) or other real
property interest (all of those facilities or interests that form an integral
part of a single development or operation being considered as one interest),
owned or leased and having a gross book value as of the date of its
determination in excess of 1% of Consolidated Net Tangible Assets, other than a
facility or portion of a facility (i) financed by means of industrial revenue
bonds or (ii) which, as determined in good faith by resolution of the board of
directors of the Issuer or the
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applicable Guarantor, is not of material importance to the total business
conducted by us and our subsidiaries as a whole.
"RESTRICTED SUBSIDIARY" means, as of the date of determination, United
Dominion Industries, Inc., United Dominion Holdings, Inc. and any other
subsidiary, the assets of which account for more than 5% of Consolidated Net
Tangible Assets at the end of the most recent fiscal period or the revenues of
which account for more than 5% of the consolidated revenues of United Dominion
Industries Limited and its subsidiaries for the most recently completed four
fiscal quarters, including as a restricted subsidiary any parent company of a
restricted subsidiary:
- A "wholly owned restricted subsidiary" is any restricted subsidiary all
of whose outstanding securities having the voting power to elect the
Board of Directors of the restricted subsidiary (irrespective of whether
or not at the time securities of any other class or classes of the
restricted subsidiary will have or might have voting power by reason of
the happening of any contingency) are at the time directly or indirectly
owned or controlled by us and/or by one or more wholly owned restricted
subsidiaries.
"SUBSIDIARY" means any corporation, limited liability company, association
or other entity of which at least a majority of outstanding securities having
the voting power to elect a majority of the board of directors of that entity
(irrespective of whether or not at the time securities of any other class or
classes of that entity will have or might have voting power by reason of the
happening of any contingency) is at the time directly or indirectly owned or
controlled by us, and/or by one or more of our subsidiaries.
EVENTS OF DEFAULT
The indenture defines an "Event of Default" with respect to any series of
guaranteed debt securities as:
- default in payment of principal of or premium, if any, on any debt
security of that series when due and payable at maturity;
- default for 30 days in payment of interest on any debt security of that
series;
- default in the deposit of any sinking fund payment when due for that
series;
- failure or breach by any of us in the performance of any other of the
covenants or warranties in the indenture (other than a covenant or
warranty included in the indenture solely for the benefit of a series of
guaranteed debt securities other than that series) continued for 45 days
after we have been given written notice by the trustee, or we and the
trustee have been given written notice by the holders of at least 25% in
aggregate principal amount of the outstanding guaranteed debt securities
of that series, specifying the default or breach and requiring it to be
remedied and stating that the notice is a notice of default under the
indenture;
- a default under any bond, debenture, note or other evidence of any of our
indebtedness (including a default with respect to another series of
guaranteed debt securities) or under any mortgage, indenture or
instrument under which there may be issued or by which there may be
secured or evidenced any of our indebtedness (including the indenture),
whether the indebtedness now exists or is created later, which default
will:
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- failure to pay the indebtedness in a principal amount in excess of $15
million when due and payable at final maturity after the expiration of
any applicable grace period or will have resulted in indebtedness in a
principal amount in excess of $15 million becoming or being declared due
and payable prior to the date on which it would otherwise have become due
and payable, without the indebtedness having been discharged, or the
acceleration having been rescinded or annulled, within a period of 15
days after there has been given, by overnight mail or other same day or
overnight delivery service which can provide evidence of delivery, to us
by the trustee, or to us and the trustee by the holders of at least 25%
in aggregate principal amount of the outstanding guaranteed debt
securities of that series, a written notice specifying the default and
requiring us to cause the indebtedness to be discharged or to cause the
acceleration to be rescinded or annulled and stating that the notice is a
notice of default under the indenture;
- events of bankruptcy, insolvency or reorganization as described in the
indenture; and
- any other event of default with respect to guaranteed debt securities of
that series. (Section 501)
If any event of default with respect to guaranteed debt securities of any
series at the time outstanding occurs and is continuing, either the trustee or
the holders of not less than 25% in aggregate principal amount of the
outstanding guaranteed debt securities of that series may declare the principal
amount (or, if the guaranteed debt securities of that series are Original Issue
Discount Securities, the portion of the principal amount of the guaranteed debt
securities as may be specified in the terms of those guaranteed debt securities)
of all guaranteed debt securities of that series to be due and payable
immediately by a written notice to us (and to the trustee if given by holders of
guaranteed debt securities), and upon that declaration the aggregate principal
amount (or specified amount) will become immediately due and payable. If an
event of default described in the fourth bullet point above or another event of
default specified in the last bullet point above that is applicable to all
outstanding guaranteed debt securities occurs and is continuing, or an event of
default specified in the next to last bullet point above occurs and is
continuing, either the trustee or the holders of not less than 25% in aggregate
principal amount of all the guaranteed debt securities then outstanding (treated
as one class) may declare the principal amount (or, if any guaranteed debt
securities are Original Issue Discount Securities, the portion of the principal
amount as may be specified in the terms of those guaranteed debt securities) of
all the guaranteed debt securities then outstanding to be due and payable
immediately, and upon any such declaration the principal amount will become
immediately due and payable. Upon conditions as described in the indenture the
declarations may be annulled and past defaults (except, unless previously cured,
a default in payment of principal of or premium, if any, or interest, if any, on
the guaranteed debt securities of that series and other specified defaults,
which cannot be amended without the consent of the holder of each outstanding
debt security of that series) may be waived by the holders of a majority in
aggregate principal amount of the outstanding guaranteed debt securities of that
series on behalf of the holders of all guaranteed debt securities of that
series. (Sections 502 and 513)
Reference is made to the prospectus supplement relating to each series of
outstanding guaranteed debt securities that are Original Issue Discount
Securities for the particular provisions relating to acceleration of the
maturity of a portion of the principal amount of the Original Issue Discount
Securities upon the occurrence and continuation of an event of default.
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The trustee is required, within 90 days after the occurrence of a default
with respect to guaranteed debt securities of any series at the time
outstanding, to give to the holders of the outstanding guaranteed debt
securities of that series notice of the default actually known to it if not
cured or waived. However, except in the case of default in the payment of
principal of or premium, if any, or interest on any debt security of that
series, or in the deposit of any sinking fund payment which is provided, the
trustee will be protected in withholding the notice if the trustee in good faith
determines that the withholding of the notice is in the interest of the holders
of the outstanding guaranteed debt securities of that series. In addition, the
notice will not be given until at least (a) 45 days after the occurrence of a
default with respect to outstanding guaranteed debt securities of any series in
the performance of a covenant or warranty in the indenture other than for the
payment of the principal of or premium, if any, or interest on any debt security
of that series or the deposit of any sinking fund payment with respect to the
guaranteed debt securities of that series or (b) 15 days after the occurrence of
a default with respect to the failure to pay at maturity, or the acceleration
of, indebtedness in a principal amount in excess of $15 million. The term
default with respect to any series of outstanding guaranteed debt securities for
the purpose of this provision only means the happening of any of the events of
default specified in the indenture relating to that series of outstanding
guaranteed debt securities, excluding any grace periods and irrespective of any
notice requirements. (Section 602)
The trustee, subject to its duty during default to act with the required
standard of care, is entitled to be offered indemnity satisfactory to the
trustee in its reasonable judgment by the holders of any series of outstanding
guaranteed debt securities before exercising any right or power under the
indenture at the request of the holders of that series of guaranteed debt
securities. (Section 603) Subject to those provisions for the indemnification of
the trustee, the holders of a majority in aggregate principal amount of
outstanding guaranteed debt securities of any series may direct the time, method
and place of conducting any proceeding for any remedy available to the trustee,
or exercising any trust or other power conferred on the trustee, with respect to
the guaranteed debt securities of that series. The trustee, however, may decline
to act if that direction is contrary to law or the indenture or may be unduly
prejudicial to the holder of outstanding guaranteed debt securities not joining
in the direction. In the case of book-entry securities, the trustee is required
to establish a record date for purposes of determining which holders are
entitled to join in that direction. (Section 512)
No holder of a debt security will have any right to institute any
proceeding with respect to the indenture, or for the appointment of a receiver,
assignee, trustee, liquidator or sequestrator (or other similar official), or
for any other remedy thereunder, unless:
- the holder has previously given to the trustee written notice of a
continuing event of default with respect to the guaranteed debt
securities of that series;
- holders of at least 25% in aggregate principal amount of the outstanding
guaranteed debt securities of that series have made a written request to
the trustee to institute the proceeding and the holder or holders have
offered security or indemnity satisfactory to the trustee in its
reasonable judgment; and
- the trustee has failed to institute the proceeding, and has not received
from the holders of a majority in aggregate principal amount of the
outstanding guaranteed debt securities of that series a direction
inconsistent with that request, within 60 days after the notice, request
and offer. (Section 507)
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However, these limitations do not apply to a suit instituted by a holder of a
debt security to enforce payment of the principal of, premium, if any, or
interest on the debt security on or after the applicable due date specified in
the debt security. (Section 508)
We are required to file annually with the trustee a certificate of no
default. (Section 1004)
MODIFICATION OF THE INDENTURE AND WAIVER OF COVENANTS
We and the trustee are permitted to enter into one or more supplemental
indentures without the consent of the holders of any of the guaranteed debt
securities in order to:
- evidence the succession to us of another person, or successive
successions, and the assumption of our covenants, agreements and
obligations by a successor;
- add to our covenants for the benefit of the holders of guaranteed debt
securities or to surrender any of our rights or powers;
- add additional events of default;
- add or change any provisions of the indenture to the extent necessary to
facilitate the issuance of guaranteed debt securities in bearer or
uncertificated form;
- add to, change or eliminate any provision of the indenture in respect of
one or more series of guaranteed debt securities; however, if the action
adversely affects the interests of any holders of guaranteed debt
securities of any series, the addition, change or elimination (i) will
not apply to any guaranteed debt securities created prior to the action
and entitled to the benefit of the provision or modify the rights of any
holder of those guaranteed debt securities, or (ii) will become effective
with respect to that series only when no security of that series remains
outstanding;
- convey, transfer, assign, mortgage or pledge any property to or with the
trustee or to surrender any right or power conferred upon us;
- secure securities pursuant to the terms of the indenture;
- establish the form or terms of guaranteed debt securities;
- provide for uncertificated securities in addition to certificated
securities;
- evidence and provide for successor trustees or to add or change any
provisions to the extent necessary to permit or facilitate the
appointment of a separate trustee or trustees for specific series of
guaranteed debt securities and the administration of trusts pursuant to
the indenture;
- cure any ambiguity, to correct any defect or supplement any inconsistent
provisions or to make any other provisions with respect to matters or
questions arising under the indenture, provided that the action does not
adversely affect the interests of the holders of guaranteed debt
securities of any series;
- supplement any provisions of the indenture necessary to permit or
facilitate the defeasance and discharge of any series of guaranteed debt
securities, provided that the action does not adversely affect the
interests of the holders of guaranteed debt securities of that series or
any other series;
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- comply with the rules or regulations of any securities exchange or
automated quotation system on which any of the guaranteed debt securities
may be listed or traded; or
- add, change or eliminate any provisions of the indenture as is necessary
or desirable in accordance with any amendments to the Trust Indenture
Act, provided that the action does not adversely affect the rights or
interests of any holder of guaranteed debt securities. (Section 901)
We and the trustee are permitted, with the consent of the holders of not
less than a majority in principal amount of outstanding guaranteed debt
securities of each series (treated as one class) affected, to execute
supplemental indentures adding any provisions to or changing or eliminating any
of the provisions of the indenture or modifying the rights of the holders of
outstanding guaranteed debt securities of that series. However, no supplemental
indenture may, without the consent of the holder of each outstanding debt
security affected:
- except to the extent permitted pursuant to the indenture, change the
stated maturity of the principal of, or any installment of principal of
or interest on, any debt security of any series;
- reduce the principal amount of, the premium, if any, or interest on, any
debt security of any series;
- reduce the amount of principal of an Original Issue Discount Security
payable upon acceleration of its maturity;
- change the place or currency of payment of principal of, or any premium
or interest on, any debt security of any series;
- impair the right to institute suit for the enforcement of any payment on
or with respect to any debt security of any series;
- reduce the percentage as stated above of the holders of outstanding
guaranteed debt securities of any series whose consent is required for
any supplemental indenture or for amendment or waiver of compliance with
some of the provisions of the indenture or certain defaults; or
- effect other changes as described in the indenture. (Section 902)
We are permitted to omit compliance with some of the covenants in the
indenture with respect to guaranteed debt securities of any series upon waiver
by the holders of not less than a majority in principal amount of outstanding
guaranteed debt securities of that series. (Section 1011)
In determining whether the holders of the requisite principal amount of the
outstanding guaranteed debt securities have given or taken any direction,
notice, consent, waiver or other action under the indenture as of any date:
- the principal amount of an Original Issue Discount Security deemed to be
outstanding will be the amount of the principal that would be due and
payable as of that date upon acceleration of the maturity of that
security to that date;
- if, at that date, the principal amount payable at the stated maturity of
a debt security is not determinable (for example, because it is based on
an index), the principal
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amount of the debt security deemed to be outstanding as of that date will
be an amount determined in the manner prescribed for that debt security;
- the principal amount of a debt security denominated in one or more
foreign currencies or currency units deemed to be outstanding will be the
U.S. dollar equivalent, determined as of that date in the manner
prescribed for that debt security, of the principal amount of the debt
security (or, in the case of a debt security described in the clauses
above, of the amount so described);
- guaranteed debt securities owned by any of us or any of our subsidiaries,
or any other obligor on the guaranteed debt securities or any of their
affiliates, will be disregarded and deemed not to be outstanding; and
- some guaranteed debt securities, including those for whose payment or
redemption money has been deposited or set aside in trust for the holders
of the guaranteed debt securities and those that have been fully defeased
pursuant to Section 1502 of the indenture, will not be deemed to be
outstanding. (Section 101)
Except in limited circumstances, we are entitled to set any day as a record
date for the purpose of determining the holders of outstanding guaranteed debt
securities of any series entitled to give or take any direction, notice,
consent, waiver or other action under the indenture, in the manner and subject
to the limitations provided in the indenture. In limited circumstances, the
trustee will be entitled to set a record date for action by holders of
guaranteed debt securities. If a record date is set for any action to be taken
by holders of a particular series, only the persons who are holders of
outstanding guaranteed debt securities of that series on the record date may
take that action. To be effective, holders of the requisite principal amount of
the guaranteed debt securities must take the action within a specified period
following the record date. (Section 104)
BOOK-ENTRY SECURITIES
The following description of book-entry securities will apply to any series
of guaranteed debt securities issued in whole or in part in the form of a global
security or securities, except as otherwise provided in the applicable
prospectus supplement.
Book-entry securities of like tenor and having the same date of original
issue will be represented by one or more global securities. Each global security
representing book-entry securities will be deposited with, or on behalf of, the
depositary. This means that certificates will not be issued to each holder of
those guaranteed debt securities. The global security will be registered in the
name of the depositary or its nominee.
The Depository Trust Company ("DTC") is a limited-purpose trust company
organized under the New York Banking Law, a "banking organization" within the
meaning of the New York Banking Law, a member of the United States Federal
Reserve System, a "clearing corporation" within the meaning of the New York
Uniform Commercial Code and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Exchange Act. DTC holds securities that its
participants ("Participants") deposit with DTC. DTC will keep a computerized
record of its Participants (for example, your broker) whose clients have
purchased book-entry securities. The Participant will then keep a record of its
clients who have purchased the book-entry securities. DTC also facilitates the
settlement among Participants of securities transactions, such as transfers and
pledges, in deposited securities through electronic computerized book-entry
changes in Participants' accounts, thereby eliminating the need for physical
movement of securities certificates. "Direct Participants"
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include securities brokers and dealers, banks, trust companies, clearing
corporations and other organizations.
DTC is owned by a number of Direct Participants and by the New York Stock
Exchange, Inc., the American Stock Exchange, Inc., and the National Association
of Securities Dealers, Inc. Access to DTC's book-entry system is also available
to others, such as securities brokers and dealers, banks and trust companies
that clear through or maintain a custodial relationship with a Direct
Participant, either directly or indirectly ("Indirect Participants"). The rules
applicable to DTC and its Participants are on file with the SEC.
Upon issuance of book-entry securities, purchases of guaranteed debt
securities under the DTC System must be made by or through Direct Participants,
which will receive a credit for the guaranteed debt securities on DTC's records.
The ownership interest of each actual purchaser of each debt security (referred
to as a "beneficial owner") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial owners will not receive written confirmation
from DTC of their purchase, but beneficial owners are expected to receive
written confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect Participant through
which the beneficial owner entered into the transaction. Transfers of ownership
interests in the guaranteed debt securities are to be accomplished by entries
made on the books of Participants acting on behalf of beneficial owners.
Beneficial owners will not receive certificates representing their ownership
interests in guaranteed debt securities, except in the event that use of the
book-entry system for the guaranteed debt securities is discontinued. The laws
of some jurisdictions require that purchasers of securities take physical
delivery of those securities in definitive form. Those laws may impair the
ability to transfer beneficial interests in a global security.
So long as DTC, or its nominee, is the registered owner of the global
security, DTC or its nominee, as the case may be, will be considered the sole
owner or holder of the book-entry securities for all purposes under the
indenture. Except as described in this section, beneficial owners will not be
entitled to have book-entry securities registered in their names, will not
receive or be entitled to receive physical delivery of securities in definitive
form and will not be considered the owners or holders of the securities under
the indenture.
To facilitate subsequent transfers, all guaranteed debt securities
deposited by Participants with DTC are registered in the name of DTC's
partnership nominee, Cede & Co. The deposit of guaranteed debt securities with
DTC and their registration in the name of Cede & Co. do not effect any change in
beneficial ownership. DTC has no knowledge of the actual beneficial owners of
the guaranteed debt securities. DTC's records reflect only the identity of the
Direct Participants to whose accounts the guaranteed debt securities are
credited, which may or may not be the beneficial owners. The Participants will
remain responsible for keeping account of their holdings on behalf of their
customers. Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to beneficial owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect at various times.
Neither DTC nor Cede & Co. will consent or vote with respect to guaranteed
debt securities. Under its usual procedures, DTC mails us an omnibus proxy as
soon as possible after the record date. The omnibus proxy assigns Cede & Co.'s
consenting or voting rights to those Direct Participants to whose accounts the
guaranteed debt securities are credited on the record date (identified in a
listing attached to the omnibus proxy).
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Payment of principal of and any premium and interest on book-entry
securities represented by any global security registered in the name of or held
by the depositary or its nominee will be made by us through the trustee or
through a paying agent (the "Paying Agent"), which may also be the trustee under
the indenture, to DTC or its nominee. We, the trustee and the Paying Agent will
treat DTC or its nominee as the registered owner and holder of the global
security representing the book-entry securities for all purposes. Accordingly,
we, the trustee and the Paying Agent will have no responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests in a global security representing the book-entry
securities or for maintaining, supervising or reviewing any records relating to
those beneficial ownership interests.
DTC will credit Direct Participants' accounts on the payable date in
accordance with their respective holdings shown on DTC's records unless DTC has
reason to believe that it will not receive payment on the payable date. Payments
by Participants to beneficial owners will be governed by standing instructions
and customary practices, as in the case with securities held for the accounts of
customers in bearer form or registered in "street name," and will be the
responsibility of the Participant and not of DTC, the Paying Agent, or us,
subject to any statutory or regulatory requirements as may be in effect from
time to time. Payment of principal and interest to DTC is our responsibility or
that of the Paying Agent, disbursement of such payments to Direct Participants
shall be the responsibility of DTC, and disbursement of such payments to the
Beneficial Owners shall be the responsibility of Direct and Indirect
Participants.
No global security described above may be transferred except as a whole by
the depositary for the global security to a nominee of the depositary or by a
nominee of the depositary to the depositary or another nominee of the
depositary.
Notwithstanding any provision of the indenture or any debt security
described in this prospectus, a global security representing book-entry
securities is exchangeable for certificated guaranteed debt securities in
registered form, of like tenor and of an equal aggregate principal amount only
if:
- the depositary notifies us that it is unwilling or unable to continue as
depositary for the global security or if the depositary ceases to be a
clearing agency registered under the Exchange Act;
- we determine in our sole discretion that the global security will be
exchangeable for certificated guaranteed debt securities in registered
form; or
- an event of default with respect to the guaranteed debt securities has
occurred and is continuing. Any global security that is exchangeable
pursuant to the preceding clause will be exchangeable in whole for
certificated guaranteed debt securities in registered form, of like tenor
and of an equal aggregate principal amount, and, unless otherwise
specified in the applicable prospectus supplement, in denominations of
$1,000 and integral multiples of $1,000.
The certificated guaranteed debt securities will be registered in the name
or names of the person or persons as instructed by the depositary to the
trustee. It is expected that those instructions may be based upon directions
received by the depositary from its Participants with respect to ownership of
beneficial interests in the global security.
Except as provided above, no global security representing book-entry
securities will be exchangeable, except for another global security of like
denomination and tenor to be
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registered in the name of the depositary or its nominee. Accordingly, to
exercise any rights of a holder under the indenture, each beneficial owner of an
interest in the global security must rely on the procedures of the depositary
and, if that person is not a Participant, on the procedures of the Participant
through which that person owns its interest. We understand that under existing
industry practices, in the event that we request any action of holders of
guaranteed debt securities or a beneficial owner of an interest in the global
security desires to give or take any action that a holder is entitled to give or
take under the indenture, the depositary would authorize the Participants
holding the relevant beneficial interests to give or take that action, and the
Participants would authorize beneficial owners owning through the Participant to
give or take action or would otherwise act upon the instructions of beneficial
owners owning through them.
The information contained in this section regarding DTC and its procedures
is based on publicly available information reviewed by us.
DEFEASANCE OF OFFERED GUARANTEED DEBT SECURITIES OR COVENANTS IN SOME
CIRCUMSTANCES
DEFEASANCE AND DISCHARGE. The terms of any series of guaranteed debt
securities may provide conditions under which we will be discharged from any and
all obligations in respect of the guaranteed debt securities of that series
(except for obligations to register the transfer or exchange of guaranteed debt
securities, to replace stolen, lost or mutilated guaranteed debt securities, to
maintain paying agencies and to hold moneys for payment in trust) upon the
deposit with the trustee, in trust for the benefit of the holders of the
guaranteed debt securities, of money and/or U.S. government obligations or, in
the case of guaranteed debt securities denominated in foreign currencies, money
and/or foreign government securities which, through the payment of interest and
principal in accordance with their terms, will provide money in an amount
sufficient to pay any installment of principal (and premium, if any) and
interest on, and any mandatory sinking fund payments in respect of, the
guaranteed debt securities of that series on the stated maturity of the payment
in accordance with the terms of the indenture and the guaranteed debt
securities.
This discharge may only occur if, among other things, we have delivered to
the trustee an opinion of counsel to the effect that we have received from, or
there has been published by, the United States Internal Revenue Service a
ruling, or there has been a change in tax law, in either case to the effect that
holders of the guaranteed debt securities will not recognize gain or loss for
federal income tax purposes as a result of the deposit, defeasance and discharge
and will be subject to federal income tax on the same amount, in the same manner
and at the same times as would have been the case if the deposit, defeasance and
discharge were not to occur. (Sections 1502 and 1504) This discharge will not be
applicable to any guaranteed debt securities of that series then listed on any
securities exchange if the provision would cause the guaranteed debt securities
to be de-listed. (Section 1504)
DEFEASANCE OF COVENANTS. The indenture provides that the terms of any
series of guaranteed debt securities may provide us with the option of not
complying with some of the restrictive covenants described in Sections 801,
1008, 1009 and 1010 of the indenture, including any that may be described in the
applicable prospectus supplement. In those circumstances, the occurrence of
events of default, which are described above in the fourth bullet point (with
respect to those restrictive covenants) under "Events of Default," and any that
may be described in the applicable prospectus supplement will be deemed not to
be or result in an event of default with respect to those guaranteed debt
securities. (Section 1503)
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To exercise this option, we will be required to deposit with the trustee money
and/or U.S. government obligations (or, in the case of guaranteed debt
securities denominated in foreign currencies, money and/or foreign government
securities), which, through the payment of interest and principal in accordance
with their terms, will provide money in an amount sufficient to pay principal
(and premium, if any) and interest on, and any mandatory sinking fund payments
in respect of, the guaranteed debt securities of that series on the stated
maturity of those payments in accordance with the terms of the indenture and
those guaranteed debt securities. (Section 1504)
We will also be required to deliver to the trustee an opinion of counsel to
the effect that the deposit and related covenant defeasance will not cause the
holders of the guaranteed debt securities of that series to recognize income,
gain or loss for federal income tax purposes and that the holders will be
subject to federal income tax on the same amount, in the same manner and at the
same times as would have been the case if the deposit and defeasance were not to
occur. (Section 1504) In the event we exercise this option and the guaranteed
debt securities of that series are declared due and payable because of the
occurrence of any event of default, the amount of money and U.S. government
obligations or foreign government securities, as the case may be, on deposit
with the trustee will be sufficient to pay amounts due on the guaranteed debt
securities of that series at the time of their stated maturity. However, the
amount on deposit with the trustee may not be sufficient to pay amounts due on
the guaranteed debt securities of that series at the time of the acceleration
resulting from the event of default. In that case we would remain liable for the
payments.
The prospectus supplement will state if any defeasance provision will apply
to the offered guaranteed debt securities.
NOTICES
Notices to holders of guaranteed debt securities will be given by mail to
the addresses of the holders as they may appear in the security register.
(Sections 101 and 106)
TITLE
We, the trustee and any agent of ours or of the trustee may treat the
person in whose name a debt security is registered on the applicable record date
as the owner of the debt security (whether or not the debt security may be
overdue) for the purpose of making payment and for all other purposes. (Section
309)
GOVERNING LAW
The indenture and the guaranteed debt securities will be governed by, and
construed in accordance with, the laws of the State of New York applicable to
contracts to be performed entirely within the State of New York. (Section 112)
CONSENT TO SERVICE AND JURISDICTION
United Dominion Industries Limited, a guarantor of the guaranteed debt
securities, has designated and appointed United Dominion Industries, Inc. as its
authorized agent upon which process may be served in any suit or proceeding
arising out of or relating to the guaranteed debt securities or the guarantees
or the indenture relating to the guaranteed debt securities. Any suit or
proceeding may be instituted in any State or Federal court located in
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the Borough of Manhattan, the City of New York. United Dominion Industries
Limited has submitted, for that purpose, to the jurisdiction of any of those
courts in which any suit or proceeding is instituted. (Section 114)
TRUSTEE
The trustee may resign or be removed under circumstances described in the
indenture with respect to one or more series of guaranteed debt securities and
we may appoint a successor trustee to act with respect to that series. (Section
610) In the event that two or more persons are acting as trustee with respect to
different series of guaranteed debt securities, each trustee will be a trustee
of a trust under the indenture separate and apart from the trust administered by
any other trustee (Section 611), and any action described in this prospectus to
be taken by the "trustee" may then be taken by each trustee with respect to, and
only with respect to, the one or more series of securities for which it is
trustee.
We maintain customary banking relationships with the trustee.
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PLAN OF DISTRIBUTION
We may sell our guaranteed debt securities:
- through agents,
- through underwriters or dealers,
- directly to one or more purchasers, or
- through some combination of these methods.
BY AGENTS
The guaranteed debt securities may be sold through agents we designate.
Except as otherwise set forth in a prospectus supplement, the agents will agree
to use their reasonable best efforts to solicit purchases for the period of
their appointment.
BY UNDERWRITERS
If underwriters are used in the sale, the underwriters will acquire the
guaranteed debt securities for their own account. The underwriters may resell
the securities in one or more transactions, including negotiated transactions,
at a fixed public offering price or at varying prices determined at the time of
sale. The obligations of the underwriters to purchase the securities will be
subject to some conditions. The underwriters will be obligated to purchase all
the securities of the series offered if any of the securities are purchased. Any
initial public offering price and any discounts or concessions allowed or
re-allowed or paid to dealers may be changed from time to time.
BY DEALERS
If dealers are used in the sale, we will sell the guaranteed debt
securities to the dealers, as principal. The dealers may then resell the
guaranteed debt securities to the public at varying prices to be determined by
them at the time of sale.
DIRECT SALES
We may also directly sell guaranteed debt securities. In this case, no
underwriters, dealers or agents would be involved.
GENERAL INFORMATION
Underwriters, dealers and agents that participate in the distribution of
the offered securities may be deemed underwriters under the Securities Act of
1933, and any discounts or commissions they receive from us and any profit on
their resale of the guaranteed debt securities may be treated as underwriting
discounts and commissions under the Securities Act of 1933. Any underwriters,
dealers or agents will be identified and their compensation described in a
prospectus supplement.
We may have agreements with the underwriters, dealers and agents to
indemnify them against civil liabilities, including liabilities under the
Securities Act of 1933, or to contribute to payments that the underwriters,
dealers or agents may be required to make.
32
<PAGE> 36
Underwriters, dealers and agents may engage in transactions with, or
perform services for, us or our subsidiaries in the ordinary course of their
businesses.
Each series of guaranteed debt securities will be a new issue with no
established trading market. It is possible that one or more underwriters or
broker-dealers may make a market in the guaranteed debt securities, but will not
be obligated to do so and may discontinue any market making at any time without
notice. Therefore, we can give you no assurance as to the existence or liquidity
of a trading market for any of the guaranteed debt securities.
In connection with an offering of our guaranteed debt securities,
underwriters, dealers or agents may purchase and sell them in the open market.
These transactions may include stabilizing transactions and purchases to cover
syndicate short positions created in connection with the offering. Stabilizing
transactions consist of bids or purchases for the purpose of preventing or
slowing a decline in the market price of the guaranteed debt securities; and
syndicate short positions involve the sale by the underwriters or agents, as the
case may be, of a greater number of securities than they are required to
purchase from us in the offering. Underwriters also may impose a penalty bid,
which means that the underwriting syndicate may reclaim selling concessions
allowed to syndicate members or other broker dealers who sell securities in the
offering for their account if the syndicate repurchases the securities in
stabilizing or covering transactions. These activities may stabilize, maintain
or otherwise affect the market price of the guaranteed debt securities, which
may be higher than the price that might otherwise prevail in the open market.
These activities, if commenced, may be discontinued at any time without notice.
These transactions may be effected on any securities exchange on which the
guaranteed debt securities may be listed, in the over-the-counter market or
otherwise.
SALES IN CANADA
The guaranteed debt securities have not been registered in any jurisdiction
in Canada and no prospectus has been filed in Canada. Accordingly, the
guaranteed debt securities may not be sold or offered for sale to Canadian
purchasers except in accordance with Canadian securities laws, including an
exemption from prospectus filing requirements. No securities commission or
similar authority in Canada has reviewed or in any way passed upon this document
or the merits of the guaranteed debt securities described herein and any
representation to the contrary in Canada is an offense.
LEGAL MATTERS
Robinson, Bradshaw & Hinson, P.A., Charlotte North Carolina, will issue an
opinion for us regarding the validity of the guaranteed debt securities, the
guarantee of United Dominion Holdings, Inc. and other legal matters. Stikeman,
Elliott, Toronto, Ontario, Canada, will issue an opinion for us regarding the
validity of the guarantee of United Dominion Industries Limited. The Honorable
James A. Grant, P.C., Q.C., a director of United Dominion Industries Limited, is
a partner of Stikeman, Elliott. Some of the legal matters in connection with the
guaranteed debt securities will be passed on for any underwriters named in the
prospectus supplement by McGuire, Woods, Battle & Boothe LLP, Charlotte, North
Carolina or any other counsel named in the prospectus supplement.
33
<PAGE> 37
EXPERTS
The financial statements and schedule of United Dominion Industries Limited
as at December 31, 1998, and 1997, and for each of the years in the three-year
period ended December 31, 1998, have been incorporated by reference herein and
in the registration statement in reliance upon the report of KPMG LLP,
independent certified public accountants, incorporated by reference herein, and
upon the authority of that firm as experts in accounting and auditing.
The report of KPMG LLP covering the December 31, 1998 financial statements
contains an explanatory paragraph which states that United Dominion Industries
Limited's consolidated financial statements as at December 31, 1998 and 1997 and
for the three-year period ended December 31, 1998, were previously prepared on
the basis of accounting for income taxes in conformity with Canadian Institute
of Chartered Accountants Handbook Section 3470 Corporate Income Taxes. United
Dominion Industries Limited changed its method of accounting for income taxes
through the adoption of Canadian Institute of Chartered Accountants Handbook
Section 3465 Income Taxes at the beginning of 1999 and has applied the
provisions of Section 3465 retroactively. Consequently, United Dominion
Industries Limited's financial statements referred to above have been restated
to conform with this adoption and are presented in its Current Report on Form
8-K filed with the SEC on January 18, 2000.
34
<PAGE> 38
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
$200,000,000
UNITED DOMINION INDUSTRIES, INC.
UNITED DOMINION INDUSTRIES LIMITED
UNITED DOMINION HOLDINGS, INC.
[LOGO]
GUARANTEED DEBT SECURITIES
-------------------------
PROSPECTUS
, 2000
-------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 39
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the expenses to be incurred by United
Dominion Industries Limited, United Dominion Holdings, Inc. and United Dominion
Industries, Inc. in connection with the offering of the guaranteed debt
securities, other than underwriting discounts and commissions. Such companies
will bear all of such expenses.
<TABLE>
<S> <C>
SEC registration fee........................................ $ 52,800
Accounting fees and expenses*............................... $150,000
Legal fees and expenses*.................................... $125,000
Fees and expenses of trustee and counsel*................... $ 11,000
Rating agency fees*......................................... $150,000
Printing and engraving fees and expenses*................... $ 20,000
Blue Sky fees and expenses*................................. $ 10,000
Miscellaneous*.............................................. $ 21,200
--------
Total*.................................................... $540,000
========
</TABLE>
- -------------------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
United Dominion Industries Limited (the "Company") is amalgamated under the
laws of Canada. Under the Canada Business Corporations Act, the Company may
indemnify a present or former officer or director of the Company or a person who
acts or acted at the Company's request as a director or officer of another body
corporate of which the Company is or was a shareholder or creditor and the heirs
and legal representatives of such director or officer against all costs, charges
and expenses, including an amount paid to settle an action or satisfy a
judgment, reasonably incurred by such person in respect of any civil, criminal
or administrative action or proceeding to which he or she is made a party by
reason of being or having been such a director or officer of the Company or such
other body corporate if the director or officer acted honestly and in good faith
with a view to the best interests of the Company and in the case of a criminal
or administrative action or proceeding that is enforced by a monetary penalty,
had reasonable grounds for believing that his or her conduct was lawful. Such
indemnification may be made in connection with a derivative action (e.g. an
action by or on behalf of the Company) only with court approval and provided the
conditions set forth above are fulfilled. A director or officer is entitled to
such indemnification from the Company as a matter of right if he or she was
substantially successful on the merits in his or her defense of the action or
proceeding and fulfilled the conditions set forth above.
In accordance with the Canada Business Corporations Act, the by-laws of the
Company provide that the Company shall, subject to limitations contained in the
Act, indemnify a director or officer, a former director or officer, or a person
who acts or acted at the Company's request as a director or officer of the body
corporate of which the Company is or was a shareholder or creditor and his or
her heirs and legal representatives against all costs, charges and expenses,
including an amount paid to settle an action or satisfy a judgment, reasonably
incurred by him or her in respect of any civil, criminal or administrative
action or
II-1
<PAGE> 40
proceeding to which he or she is made a party by reason of being or having been
a director or officer of such body if he or she acted honestly and in good faith
with a view to the best interests of the Company, and, in the case of a criminal
action or administrative action or proceeding that is enforced by monetary
penalty, had reasonable grounds for believing that his or her conduct was
lawful.
The Company maintains directors' and officers' liability insurance with an
aggregate policy limit of $100 million. Under this insurance coverage, the
Company would be reimbursed for indemnity payments made on behalf of its
directors and officers. Individual directors and officers would also be
reimbursed for losses arising during the performance of their duties for which
they are not indemnified by the Company. The current annual premium paid by the
Company for directors' and officers' liability insurance is $258,750 and was not
allocated to directors as a group or to officers as a group.
Each individual executing this Registration Statement as an officer or
director of United Dominion Industries Limited, United Dominion Holdings, Inc.
or United Dominion Industries, Inc. serves as an officer or director of United
Dominion Industries Limited.
Each of United Dominion Holdings, Inc. and United Dominion Industries, Inc.
(the "Delaware Corporations") is incorporated under the laws of the State of
Delaware. Section 145 of the Delaware General Corporation Law provides that a
Delaware corporation has the power to indemnify a director, officer, employee or
agent of the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and expenses incurred in
connection with an action or proceeding to which he is or is threatened to be
made a party by reason of such position, if such person shall have acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and in any criminal proceeding, if such person had
no reasonable cause to believe his conduct was unlawful; provided that, in the
case of actions brought by or in the right of the corporation, no
indemnification shall be made with respect to any matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the
extent that the adjudicating court determines that such indemnification is
proper under the circumstances. The Certificate of Incorporation of United
Dominion Industries, Inc. provides that United Dominion Industries, Inc. shall,
to the fullest extent permitted by Section 145 of the Delaware General
Corporation Law, as the same may be amended from time to time, indemnify any and
all persons whom it shall have power to indemnify under said section from and
against any and all of the expenses, liabilities or other matters referred to in
or covered by said section.
The bylaws of the Delaware Corporations provide that the relevant Delaware
Corporation shall indemnify, to the fullest extent permitted by the Delaware
General Corporation Law, as amended (to the extent such amendments provide
broader indemnification rights), each person who was or is made a party to or is
otherwise involved in an action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that such person is or
was a director or an officer of such Delaware Corporation or is or was serving
at the request of such Delaware Corporation as a director, officer, employee or
agent of another entity (an "indemnitee"), against all expense, liability and
loss (including attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid in settlement) reasonably incurred or suffered by
such indemnitee in connection therewith; provided, that, except as described in
such bylaws with respect to proceedings to enforce rights to indemnification,
such Delaware Corporation shall only indemnify an indemnitee in connection with
a proceeding initiated by such indemnitee if such proceeding was authorized by
the Board of Directors of such Delaware Corporation. The right to
indemnification in the bylaws of the
II-2
<PAGE> 41
Delaware Corporations includes the right to advancement of expenses incurred in
defending any such proceeding, subject to any requirements of the Delaware
General Corporation Law for undertakings to repay amounts advanced upon final
adjudication that such indemnitee is not entitled to be indemnified for advanced
expenses.
The Bylaws of the Delaware Corporations also provide that such corporations
may maintain insurance, at their expense, to protect such corporations and any
director, officer, employee or agent of such corporations or another
corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss, whether or not the Delaware Corporations would have
the power to indemnify such persons against expenses, liabilities or losses
under the Delaware General Corporation Law.
Section 102 of the Delaware General Corporation Law permits a Delaware
corporation to include in its certificate of incorporation a provision
eliminating or limiting a director's liability to a corporation or its
stockholders for monetary damages for breaches of fiduciary duty. Section 102
provides, however, that liability for breaches of the duty of loyalty, acts or
omissions not in good faith or involving intentional misconduct, or knowing
violation of the law, and the unlawful purchase or redemption of stock or
payment of unlawful dividends or the receipt of improper personal benefits
cannot be eliminated or limited in this manner. The certificate of incorporation
of each of the Delaware Corporations includes a provision that eliminates, to
the fullest extent permitted, director liability for monetary damages for
breaches of fiduciary duty.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or persons controlling the
Company pursuant to the foregoing provisions, the Company has been informed that
in the opinion of the U.S. Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is therefore unenforceable.
ITEM 16. EXHIBITS
The following is a list of all the exhibits filed as part of the
Registration Statement. References to the Company mean United Dominion
Industries Limited.
<TABLE>
<CAPTION>
EXHIBIT
NO. EXHIBIT
- ------- -------
<C> <C> <S>
1.01* -- Form of Underwriting Agreement
4.01 -- Form of Indenture among United Dominion Industries, Inc., as
issuer, United Dominion Industries Limited and United
Dominion Holdings, Inc., as guarantors, and First Union
National Bank, as trustee
4.02 -- Form of guaranteed debt securities (included in Article Two
of Exhibit 4.01)
5.01 -- Opinion of Robinson, Bradshaw & Hinson, P.A.
5.02 -- Opinion of Stikeman, Elliott
12.01 -- Computation of Ratio of Earnings to Fixed Charges
23.01 -- Consent of KPMG LLP
23.02 -- Consent of Robinson, Bradshaw & Hinson, P.A. (included in
Exhibit 5.01)
</TABLE>
II-3
<PAGE> 42
<TABLE>
<CAPTION>
EXHIBIT
NO. EXHIBIT
- ------- -------
<C> <C> <S>
23.03 -- Consent of Stikeman, Elliott (included in Exhibit 5.02)
24.01 -- Power of Attorney of William R. Holland
24.02 -- Power of Attorney of William Dries
24.03 -- Power of Attorney of C. Theodore Leinbach III
24.04 -- Power of Attorney of Donald N. Boyce
24.05 -- Power of Attorney of Hermann Buerger
24.06 -- Power of Attorney of James E. Courtney
24.07 -- Power of Attorney of Peter A. Crossgrove
24.08 -- Power of Attorney of Jere A. Drummond
24.09 -- Power of Attorney of R. Stuart Dickson
24.10 -- Power of Attorney of James A. Grant
24.11 -- Power of Attorney of John T. Mayberry
24.12 -- Power of Attorney of Dr. Harry A. Nurkin
24.13 -- Power of Attorney of Russell C. King, Jr.
24.14 -- Power of Attorney of Dalton D. Ruffin
24.15 -- Power of Attorney of William W. Stinson
24.16 -- Power of Attorney of George S. Taylor
25.01 -- Statement of Eligibility of Trustee on Form T-1
</TABLE>
- -------------------------
* To be filed by amendment or to be incorporated by reference from a
subsequently filed Form 8-K.
ITEM 17. UNDERTAKINGS
Each undersigned registrant hereby undertakes as follows:
(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 the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
II-4
<PAGE> 43
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that the undertakings in subparts (i) and (ii) above do
not apply if the information required to be included in a post-effective
amendment by such subparts is contained in periodic reports filed with or
furnished to the Commission by such registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference into this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such 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.
(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.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of such registrant's annual report
pursuant to section 13(a) or section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of such registrant pursuant to the foregoing
provisions, or otherwise, such 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, such registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of
such issue.
(6) 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 such registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act of 1933 shall be deemed to be part
of this registration statement as of the time it was declared effective.
II-5
<PAGE> 44
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form F-3 and has duly caused this Registration
Statement or amendment thereto to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Charlotte, State of North Carolina on
January 18, 2000.
UNITED DOMINION INDUSTRIES LIMITED
By: /s/ WILLIAM R. HOLLAND*
-----------------------------------
William R. Holland
Chairman and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement or amendment thereto has been signed by the following
persons and in the capacities indicated on January 18, 2000.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ WILLIAM R. HOLLAND* Chairman of the Board of Directors and
- -------------------------------------- Chief Executive Officer (Principal
William R. Holland Executive Officer)
/s/ WILLIAM DRIES Senior Vice President and Chief
- -------------------------------------- Financial Officer (Principal
William Dries Financial Officer)
/s/ C. THEODORE LEINBACH III Vice President and Controller
- -------------------------------------- (Principal Accounting Officer)
C. Theodore Leinbach III
/s/ DONALD N. BOYCE* Director
- --------------------------------------
Donald N. Boyce
/s/ HERMANN BUERGER* Director
- --------------------------------------
Hermann Buerger
/s/ JAMES E. COURTNEY* Director
- --------------------------------------
James E. Courtney
/s/ PETER A. CROSSGROVE* Director
- --------------------------------------
Peter A. Crossgrove
/s/ JERE A. DRUMMOND* Director
- --------------------------------------
Jere A. Drummond
/s/ R. STUART DICKSON* Director
- --------------------------------------
R. Stuart Dickson
</TABLE>
II-6
<PAGE> 45
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ JAMES A. GRANT* Director
- --------------------------------------
James A. Grant
/s/ JOHN T. MAYBERRY* Director
- --------------------------------------
John T. Mayberry
/s/ DR. HARRY A. NURKIN* Director
- --------------------------------------
Dr. Harry A. Nurkin
/s/ RUSSELL C. KING, JR.* Director
- --------------------------------------
Russell C. King, Jr.
/s/ DALTON D. RUFFIN* Director
- --------------------------------------
Dalton D. Ruffin
/s/ WILLIAM W. STINSON* Director
- --------------------------------------
William W. Stinson
/s/ GEORGE S. TAYLOR* Director
- --------------------------------------
George S. Taylor
*By: /s/ RICHARD L. MAGEE
- --------------------------------------
Richard L. Magee, Attorney in Fact
</TABLE>
II-7
<PAGE> 46
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form F-3 and has duly caused this Registration
Statement or amendment thereto to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Charlotte, State of North Carolina on
January 18, 2000.
UNITED DOMINION HOLDINGS, INC.
By: /s/ WILLIAM R. HOLLAND*
-----------------------------------
William R. Holland
Chairman and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement or amendment thereto has been signed by the following
persons and in the capacities indicated on January 18, 2000.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ WILLIAM R. HOLLAND* Chairman of the Board of Directors and
- -------------------------------------- Chief Executive Officer (Principal
William R. Holland Executive Officer)
/s/ WILLIAM DRIES Senior Vice President and Chief
- -------------------------------------- Financial Officer (Principal
William Dries Financial Officer)
/s/ C. THEODORE LEINBACH III Vice President and Controller
- -------------------------------------- (Principal Accounting Officer)
C. Theodore Leinbach III
/s/ DALTON D. RUFFIN* Director
- --------------------------------------
Dalton D. Ruffin
/s/ WILLIAM W. STINSON* Director
- --------------------------------------
William W. Stinson
* By: /s/ RICHARD L. MAGEE
- --------------------------------------
Richard L. Magee, Attorney in Fact
</TABLE>
II-8
<PAGE> 47
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form F-3 and has duly caused this Registration
Statement or amendment thereto to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Charlotte, State of North Carolina on
January 18, 2000.
UNITED DOMINION INDUSTRIES, INC.
By: /s/ WILLIAM R. HOLLAND*
-----------------------------------
William R. Holland
Chairman and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement or amendment thereto has been signed by the following
persons and in the capacities indicated on January 18, 2000.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ WILLIAM R. HOLLAND* Chairman of the Board of Directors and
- -------------------------------------- Chief Executive Officer (Principal
William R. Holland Executive Officer)
/s/ WILLIAM DRIES Senior Vice President and Chief
- -------------------------------------- Financial Officer (Principal
William Dries Financial Officer)
/s/ C. THEODORE LEINBACH III Vice President and Controller
- -------------------------------------- (Principal Accounting Officer)
C. Theodore Leinbach III
/s/ DALTON D. RUFFIN* Director
- --------------------------------------
Dalton D. Ruffin
/s/ WILLIAM W. STINSON* Director
- --------------------------------------
William W. Stinson
* By: /s/ RICHARD L. MAGEE
- --------------------------------------
Richard L. Magee, Attorney in Fact
</TABLE>
II-9
<PAGE> 48
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. EXHIBIT
- ------- -------
<C> <C> <S>
1.01* -- Form of Underwriting Agreement
4.01 -- Form of Indenture among United Dominion Industries, Inc., as
issuer, United Dominion Industries Limited and United
Dominion Holdings, Inc., as guarantors, and First Union
National Bank, as trustee
4.02 -- Form of guaranteed debt securities (included in Article Two
of Exhibit 4.01)
5.01 -- Opinion of Robinson, Bradshaw & Hinson, P.A.
5.02 -- Opinion of Stikeman, Elliott
12.01 -- Computation of Ratio of Earnings to Fixed Charges
23.01 -- Consent of KPMG LLP
23.02 -- Consent of Robinson, Bradshaw & Hinson, P.A. (included in
Exhibit 5.01)
23.03 -- Consent of Stikeman, Elliott (included in Exhibit 5.02)
24.01 -- Power of Attorney of William R. Holland
24.02 -- Power of Attorney of William Dries
24.03 -- Power of Attorney of C. Theodore Leinbach III
24.04 -- Power of Attorney of Donald N. Boyce
24.05 -- Power of Attorney of Hermann Buerger
24.06 -- Power of Attorney of James E. Courtney
24.07 -- Power of Attorney of Peter A. Crossgrove
24.08 -- Power of Attorney of Jere A. Drummond
24.09 -- Power of Attorney of R. Stuart Dickson
24.10 -- Power of Attorney of James A. Grant
24.11 -- Power of Attorney of John T. Mayberry
24.12 -- Power of Attorney of Dr. Harry A. Nurkin
24.13 -- Power of Attorney of Russell C. King, Jr.
24.14 -- Power of Attorney of Dalton D. Ruffin
24.15 -- Power of Attorney of William W. Stinson
24.16 -- Power of Attorney of George S. Taylor
25.01 -- Statement of Eligibility of Trustee on Form T-1
</TABLE>
- ---------------
* To be filed by amendment or to be incorporated by reference from a
subsequently filed Form 8-K.
II-10
<PAGE> 1
EXHIBIT 4.01
UNITED DOMINION INDUSTRIES, INC.
ISSUER
AND
UNITED DOMINION INDUSTRIES LIMITED
UNITED DOMINION HOLDINGS, INC.
GUARANTORS
TO
FIRST UNION NATIONAL BANK
TRUSTEE
INDENTURE
DATED AS OF JANUARY ____, 2000
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION..................................1
Section 101. Definitions........................................................................1
Section 102. Compliance Certificates and Opinions...............................................9
Section 103. Form of Documents Delivered to Trustee............................................10
Section 104. Acts of Holders; Record Dates.....................................................10
Section 105. Notices, Etc., to Trustee, Issuer and Guarantors..................................12
Section 106. Notice to Holders; Waiver.........................................................13
Section 107. Conflict with Trust Indenture Act.................................................13
Section 108. Effect of Headings and Table of Contents..........................................13
Section 109. Successors and Assigns............................................................13
Section 110. Separability Clause...............................................................13
Section 111. Benefits of Indenture.............................................................14
Section 112. Governing Law.....................................................................14
Section 113. Legal Holidays....................................................................14
Section 114. Appointment of Agent for Service..................................................14
ARTICLE TWO SECURITY FORMS..........................................................................15
Section 201. Forms Generally...................................................................15
Section 202. Forms of Guarantees...............................................................16
Section 203. Form of Face of Guaranteed Security...............................................16
Section 204. Form of Reverse of Guaranteed Security............................................18
Section 205. Additional Provisions Required in Global Security.................................24
Section 206. Form of Trustee's Certificate of Authentication...................................24
ARTICLE THREE THE GUARANTEED SECURITIES.............................................................24
Section 301. Amount Unlimited; Issuable in Series..............................................24
Section 302. Denominations.....................................................................28
Section 303. Execution, Authentication, Delivery and Dating....................................29
Section 304. Temporary Securities..............................................................30
Section 305. Registration, Registration of Transfer and Exchange...............................31
Section 306. Mutilated, Destroyed, Lost and Stolen Guaranteed Securities.......................33
Section 307. Payment of Interest; Interest Rights Preserved; Optional Interest Rate............34
Section 308. Optional Extension of Maturity....................................................36
Section 309. Persons Deemed Owners.............................................................37
Section 310. Cancellation......................................................................37
Section 311. Computation of Interest...........................................................38
Section 312. CUSIP Numbers.....................................................................38
ARTICLE FOUR SATISFACTION AND DISCHARGE.............................................................38
Section 401. Satisfaction and Discharge of Indenture...........................................38
Section 402. Application of Trust Money; Indemnification.......................................39
ARTICLE FIVE REMEDIES...............................................................................40
Section 501. Events of Default.................................................................40
Section 502. Acceleration of Maturity; Rescission and Annulment................................42
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee...................43
Section 504. Trustee May File Proofs of Claim..................................................44
</TABLE>
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<TABLE>
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Section 505. Trustee May Enforce Claims Without Possession of Guaranteed Securities............45
Section 506. Application of Money Collected....................................................45
Section 507. Limitation on Suits...............................................................45
Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest.........46
Section 509. Restoration of Rights and Remedies................................................46
Section 510. Rights and Remedies Cumulative....................................................46
Section 511. Delay or Omission Not Waiver......................................................46
Section 512. Control by Holders................................................................47
Section 513. Waiver of Past Defaults...........................................................47
Section 514. Undertaking for Costs.............................................................48
Section 515. Waiver Stay or Extension Laws.....................................................48
ARTICLE SIX THE TRUSTEE.............................................................................48
Section 601. Certain Duties and Responsibilities...............................................48
Section 602. Notice of Defaults................................................................50
Section 603. Certain Rights of Trustee.........................................................50
Section 604. Not Responsible for Recitals or Issuance of Guaranteed Securities.................51
Section 605. May Hold Guaranteed Securities....................................................51
Section 606. Money Held in Trust...............................................................51
Section 607. Compensation and Reimbursement....................................................51
Section 608. Disqualification; Conflicting Interests...........................................52
Section 609. Corporate Trustee Required; Eligibility...........................................52
Section 610. Resignation and Removal; Appointment of Successor.................................53
Section 611. Acceptance of Appointment by Successor............................................54
Section 612. Merger, Conversion, Consolidation or Succession to Business.......................55
Section 613. Preferential Collection of Claims Against the Issuer or the Guarantors............55
Section 614. Appointment of Authenticating Agent...............................................55
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER......................................57
Section 701. Issuer to Furnish Trustee Names and Addresses of Holders..........................57
Section 702. Preservation of Information; Communications to Holders............................57
Section 703. Reports by Trustee................................................................59
Section 704. Reports by Issuer and Guarantors..................................................59
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE..................................60
Section 801. Issuer and Guarantors May Consolidate, Etc., Only on Certain Terms................60
Section 802. Successor Substituted.............................................................61
ARTICLE NINE SUPPLEMENTAL INDENTURES................................................................61
Section 901. Supplemental Indentures Without Consent of Holders................................61
Section 902. Supplemental Indentures with Consent of Holders...................................63
Section 903. Execution of Supplemental Indentures..............................................65
Section 904. Effect of Supplemental Indentures.................................................65
Section 905. Conformity with Trust Indenture Act...............................................65
Section 906. Reference in Guaranteed Securities to Supplemental Indentures.....................65
ARTICLE TEN COVENANTS...............................................................................65
Section 1001. Payment of Principal, Premium and Interest.....................................65
Section 1002. Maintenance of Office or Agency................................................65
Section 1003. Money for Guaranteed Securities Payments to Be Held in Trust...................66
</TABLE>
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<TABLE>
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Section 1004. Statement by Officers as to Default............................................67
Section 1005. Existence......................................................................67
Section 1006. Maintenance of Properties......................................................68
Section 1007. Payment of Taxes and Other Claims..............................................68
Section 1008. Limitations on Liens...........................................................68
Section 1009. Limitation on Indebtedness of Restricted Subsidiaries..........................70
Section 1010. Limitations on Sale and Lease-Back.............................................70
Section 1011. Waiver of Certain Covenants....................................................71
Section 1012. Applicability of Covenants.....................................................71
Section 1013. Tax Information................................................................72
Section 1014. Ownership of Issuer............................................................72
ARTICLE ELEVEN REDEMPTION OF GUARANTEED SECURITIES..................................................72
Section 1101. Applicability of Article.......................................................72
Section 1102. Election to Redeem; Notice to Trustee..........................................72
Section 1103. Selection by Trustee of Guaranteed Securities to Be Redeemed...................72
Section 1104. Notice of Redemption...........................................................73
Section 1105. Deposit of Redemption Price....................................................74
Section 1106. Guaranteed Securities Payable on Redemption Date...............................74
Section 1107. Guaranteed Securities Redeemed in Part.........................................74
ARTICLE TWELVE SINKING FUNDS........................................................................74
Section 1201. Applicability of Article.......................................................74
Section 1202. Satisfaction of Sinking Fund Payments with Guaranteed Securities...............75
Section 1203. Redemption of Guaranteed Securities for Sinking Fund...........................75
ARTICLE THIRTEEN GUARANTEES.........................................................................75
Section 1301. Guarantee......................................................................75
Section 1302. Execution and Delivery of Guarantees...........................................77
ARTICLE FOURTEEN REPAYMENT AT THE OPTION OF THE HOLDERS.............................................78
Section 1401. Applicability of Article.......................................................78
Section 1402. Repayment of Guaranteed Securities.............................................78
Section 1403. Exercise of Option.............................................................78
Section 1404. When Guaranteed Securities Presented for Repayment Become Due and Payable......79
Section 1405. Guaranteed Securities Repaid in Part...........................................79
ARTICLE FIFTEEN DEFEASANCE AND COVENANT DEFEASANCE..................................................79
Section 1501. Issuer's Option to Effect Defeasance or Covenant Defeasance....................79
Section 1502. Defeasance and Discharge.......................................................80
Section 1503. Covenant Defeasance............................................................80
Section 1504. Conditions to Defeasance or Covenant Defeasance................................80
Section 1505. Acknowledgment of Discharge By Trustee.........................................82
Section 1506. Deposited Money and U.S. Government Obligations to Be Held in Trust;
Miscellaneous Provisions.......................................................83
Section 1507. Reinstatement..................................................................83
</TABLE>
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INDENTURE, dated as of January ___, 2000, among United Dominion
Industries, Inc., a corporation duly organized and existing under the laws of
the State of Delaware, as issuer (the "Issuer"), and United Dominion Industries
Limited, a corporation organized and existing under the laws of Canada, and
United Dominion Holdings, Inc., a corporation organized and existing under the
laws of the State of Delaware, as guarantors (each a "Guarantor" and
collectively the "Guarantors"), each of the foregoing having its principal
office at 2300 One First Union Center, 301 South College Street, Charlotte,
North Carolina 28202, and First Union National Bank, a United States national
banking corporation, as Trustee (the "Trustee").
RECITALS OF THE ISSUER AND THE GUARANTORS
The Issuer has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (the "Guaranteed
Securities"), to be issued in one or more series as provided for herein.
Each of the Guarantors has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of its
Guarantee, as defined below, which shall apply to, and be endorsed on, any and
all Guaranteed Securities issued by the Issuer, as provided for herein.
All things necessary to make this Indenture a valid agreement of the
Issuer and each of the Guarantors, in accordance with its terms, have been done.
Each of the Guarantors proposes to do all things necessary to make the
Guarantees, when executed by each Guarantors and endorsed on the Guaranteed
Securities issued by the Issuer hereunder, and authenticated and delivered
hereunder, the valid obligations of each of the Guarantors as hereinafter
provided.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Guaranteed Securities by the Holders thereof, it is mutually agreed, for the
equal and proportionate benefit of all Holders of the Guaranteed Securities or
of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
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(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with Canadian generally
accepted accounting principles, and, except as otherwise herein
expressly provided, the term "generally accepted accounting principles"
with respect to any computation required or permitted hereunder shall
mean such accounting principles as are generally accepted at the date
of such computation; and
(4) 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.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt", when used in connection with a sale and lease-back
transaction referred to herein shall mean, as of any particular time, the
aggregate of present values (discounted at a rate per annum equal to the average
interest borne by all Outstanding Guaranteed Securities determined on a weighted
average basis and compounded semi-annually) of the obligations of any of the
Issuer or the Guarantors or any Subsidiary for net rental payments during the
remaining term of the lease (including any period for which such lease has been
extended or may, at the option of the lessor, be extended). The term "net rental
payments" under any lease of any period shall mean the sum of the rental and
other payments required to be paid in such period by the lessee thereunder, not
including, however, any amounts required to be paid by such lessee (whether or
not designated as rental or additional rental) on account of maintenance and
repairs, reconstruction, insurance, taxes, assessments, water rates or similar
charges required to be paid by such lessee thereunder or any amounts required to
be paid by such lessee thereunder contingent upon the amount of sales,
maintenance and repairs, reconstruction, insurance, taxes, assessments, water
rates or similar charges.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Guaranteed Securities of one or more series.
"Board of Directors" means, as applicable, the board of directors of
the Issuer or either Guarantor or any duly authorized committee of such boards.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Issuer or either Guarantor to have
been duly adopted by its Board of Directors, or such committee of the Board of
Directors or officers of the Issuer or a Guarantor to which authority to act on
behalf of its Board of Directors has been delegated, and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
2
<PAGE> 7
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Consolidated Net Assets" means at any date, the total assets appearing
on the most recently prepared consolidated balance sheet of United Dominion
Industries Limited and its Subsidiaries as of the end of a fiscal quarter of
United Dominion Industries Limited, prepared in accordance with Canadian
generally accepted accounting principles at the time of calculation, less all
current liabilities as shown on such balance sheet.
"Consolidated Net Tangible Assets" means, at any date, the total assets
appearing on the most recently prepared consolidated balance sheet of United
Dominion Industries Limited and its Subsidiaries as of the end of a fiscal
quarter of United Dominion Industries Limited, prepared in accordance with
Canadian generally accepted accounting principles, less (a) all current
liabilities as shown on such balance sheet and (b) intangible assets.
"Intangible assets" means the value (net of any applicable reserves), as shown
on or reflected in such balance sheet of: (i) all trade names, trademarks,
licenses, patents, copyrights and goodwill; (ii) organizational costs; and (iii)
deferred charges (other than prepaid items such as insurance, taxes, interest,
commissions, rents and similar items and tangible assets being amortized); but
in no event shall the term "intangible assets" include product development
costs.
"Corporate Trust Office" means the principal office of the Trustee at
230 South Tryon Street, 9th Floor, Charlotte, North Carolina 28288-1179 at which
at any particular time its corporate trust business shall be administered.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1503.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1502.
"Depositary" means, with respect to the Guaranteed Securities of any
series issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary for such series by the Issuer
pursuant to Section 301, which Person shall be a clearing agency registered
under the Securities Exchange Act of 1934, as amended; and if at any time there
is more than one such Person, "Depositary" as used with respect to the
Guaranteed Securities of any series shall mean the Depositary with respect to
the Guaranteed Securities of such series.
3
<PAGE> 8
"Event of Default" has the meaning specified in Section 501.
"Expiration Date" has the meaning specified in Section 104.
"Foreign Currency" means a currency or cash issued by the government of
any country other than the United States of America or units based on or
relating to such currencies (including European Currency Units) (such units,
including European Currency Units, being hereinafter referred to as `composite
currencies' or `basket currencies').
"Foreign Government Securities" means, with respect to Guaranteed
Securities of any series that are denominated in a Foreign Currency, noncallable
(i) direct obligations of the government that issued such Foreign Currency for
the payment of which obligations its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of such government, the payment of which obligations is
unconditionally guaranteed as a full faith and credit obligation of such
government.
"Funded Indebtedness" means any Indebtedness maturing by its terms more
than one year from the date of the determination thereof, including any
Indebtedness renewable or extendible at the option of the obligor to a date
later than one year from the date of the determination thereof.
"Global Security" or "Global Securities" means a Guaranteed Security or
Guaranteed Securities, as the case may be, in the form prescribed in Section 205
evidencing all or part of a series of Guaranteed Securities, issued to the
Depositary for such series or its nominee, and registered in the name of such
Depositary or nominee.
"Guarantee" means the guarantee of each Guarantor as endorsed on each
Guaranteed Security issued by the Issuer and authenticated and delivered
pursuant to this Indenture and shall include the Guarantee set forth in Article
Thirteen of this Indenture and all other obligations and covenants of such
Guarantor contained in this Indenture and any Guaranteed Securities.
"Guaranteed Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Guaranteed Securities
authenticated and delivered under this Indenture.
"Guarantor" means each of the Persons named as a "Guarantor" in the
first paragraph of this Indenture until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean each such successor Person.
"Guarantor Order" or "Guarantor Request" means a written order or
request signed in the name of a Guarantor by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Holder" means a Person in whose name a Guaranteed Security is
registered in the Security Register.
4
<PAGE> 9
"Indebtedness" means (i) all obligations for borrowed money, (ii) all
obligations evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations in respect of letters of credit or bankers acceptances or
similar instruments (or reimbursement obligations with respect thereto), (iv)
all obligations to pay the deferred purchase price of property or services,
except trade accounts payable arising in the ordinary course of business, (v)
all obligations as lessee which are capitalized in accordance with Canadian
generally accepted accounting principles, and (vi) all Indebtedness of others
guaranteed by the Issuer, either Guarantor or any of their respective
Subsidiaries or for which the Issuer, either Guarantor or any of their
respective Subsidiaries is otherwise responsible or liable (whether by agreement
to purchase indebtedness of, or to supply funds or to invest in, others).
"Indenture" means this indenture as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
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 Indenture and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Guaranteed Securities established as contemplated by Section 301.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Guaranteed
Security, means the Stated Maturity of an installment of interest on such
Guaranteed Security.
"Issuer" means the Person named as the "Issuer" in the first paragraph
of this Indenture until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Issuer" shall mean
such successor Person.
"Issuer Order" or "Issuer Request" means a written order or request
signed in the name of the Issuer by its Chairman of the Board, its Vice Chairman
of the Board, its President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to
the Trustee.
"Maturity", when used with respect to any Guaranteed Security, means
the date on which the principal of such Guaranteed 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.
"Notice of Default" means a written notice of the kind specified in
Section 501(4).
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Issuer or either Guarantor, as the case may be, and delivered
to the Trustee. One of the officers signing an Officers' Certificate given
pursuant to Section 1004 shall be the principal executive, financial or
accounting officer of each of the Issuer and the Guarantors.
5
<PAGE> 10
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Issuer or the Guarantors, and who shall be acceptable to the
Trustee.
"Optional Reset Date" has the meaning specified in Section 307(b).
"Original Issue Discount Security" means any Guaranteed 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 502.
"Original Stated Maturity" has the meaning specified in Section 308.
"Outstanding", when used with respect to Guaranteed Securities, means,
as of the date of determination, all Guaranteed Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Guaranteed Securities theretofore cancelled by the Trustee
or delivered to the Trustee for cancellation;
(ii) Guaranteed Securities for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Issuer or the Guarantors)
in trust or set aside and segregated in trust by the Issuer or the
Guarantors (if any of the Issuer or the Guarantors shall act as its own
Paying Agent) for the Holders of such Guaranteed Securities; provided
that, if such Guaranteed 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;
(iii) Guaranteed Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which other Guaranteed
Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Guaranteed Securities in respect of
which there shall have been presented to the Trustee proof satisfactory
to it that such Guaranteed Securities are held by a bona fide purchaser
in whose hands such Guaranteed Securities are valid obligations of the
Issuer and the Guarantors; and
(iv) Guaranteed Securities as to which Defeasance has been
effected pursuant to Section 1502;
provided, however, that in determining whether the Holders of
the requisite principal amount of the Outstanding Guaranteed Securities
have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, as of any date (A) the principal amount of
an Original Issue Discount Security that shall be deemed to be
Outstanding shall 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 502, (B) if,
as of such date, the principal amount payable at the Stated Maturity of
a Guaranteed Security is not determinable (for example, because it is
based on an index), the principal amount of such Guaranteed Security
deemed to be outstanding as of such date will be an amount determined
in the manner prescribed for such Guaranteed Security, (C) the
principal amount of a Guaranteed Security denominated in
6
<PAGE> 11
one or more Foreign Currencies or currency units shall be the U.S.
dollar equivalent, determined in the manner provided as contemplated by
Section 301 on the date of original issuance of such Guaranteed
Security, of the principal amount (or, in the case of a Guaranteed
Security described in clause (A) or (B) above, the U.S. dollar
equivalent of the amount determined as provided in such clause above)
of such Guaranteed Security, and (D) Guaranteed Securities owned by the
Issuer, either Guarantor or any other obligor upon the Guaranteed
Securities or any Affiliate of the Issuer or either Guarantor or of
such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Guaranteed Securities which
a Responsible Officer of the Trustee actually knows to be so owned
shall be so disregarded. Guaranteed Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right to
so act with respect to such Guaranteed Securities and that the pledgee
is not the Issuer, either Guarantor or any other obligor upon the
Guaranteed Securities or any Affiliate of the Issuer or either
Guarantor or of such other obligor.
"Paying Agent" means any Person authorized by the Issuer or either
Guarantor to pay the principal of or any premium or interest on any Guaranteed
Securities on behalf of the Issuer or such Guarantor.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, trust, unincorporated organization or similar
entity or government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Guaranteed Securities
of any series, means the place or places where the principal of and any premium
and interest on the Guaranteed Securities of that series are payable as
contemplated by Section 301.
"Predecessor Security" of any particular Guaranteed Security means
every previous Guaranteed Security evidencing all or a portion of the same debt
as that evidenced by such particular Guaranteed Security; and, for the purposes
of this definition, any Guaranteed Security authenticated and delivered under
Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen
Guaranteed Security shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Guaranteed Security.
"Principal Property" means any manufacturing or processing plant,
building, structure or other facility of any character (together with the land
on which it is erected and improvements and fixtures comprising a part thereof)
or other real property interest (all such facilities or interests forming an
integral part of a single development or operation being considered as one
interest), owned or leased and having a gross book value as of the date of its
determination in excess of 1% of Consolidated Net Tangible Assets, other than a
facility or portion thereof (i) financed by means of industrial revenue bonds or
(ii) which, as determined in good faith by resolution of the Board of Directors
of the Issuer or a Guarantor, as the case may be, is not of material importance
to the total business conducted by the Issuer, the Guarantors and their
respective Subsidiaries taken as a whole.
7
<PAGE> 12
"Redemption Date", when used with respect to any Guaranteed Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Guaranteed Security
to be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Guaranteed Securities of any series means the date specified for
that purpose as contemplated by Section 301.
"Repayment Date" means, when used with respect to any Guaranteed
Security to be repaid at the option of the Holder, the date fixed for such
repayment by or pursuant to this Indenture.
"Reset Notice" has the meaning specified in Section 307(b).
"Responsible Officer", when used with respect to the Trustee, means any
officer within the corporate trust department of the Trustee, including any vice
president, any secretary, any assistant secretary, the treasurer, any assistant
treasurer, any trust officer or assistant trust officer, 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 knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means as of the date of determination, United
Dominion Industries, Inc., United Dominion Holdings, Inc. and any other
Subsidiary the assets of which account for more than 5% of the Consolidated Net
Tangible Assets at the end of the most recent fiscal period or the revenues of
which account for more than 5% of the consolidated revenues of United Dominion
Industries Limited and its Subsidiaries for the most recently completed four
fiscal quarters, including as a Restricted Subsidiary in each case any parent
company of any such Subsidiary. A "wholly owned Restricted Subsidiary" is any
Restricted Subsidiary of which all outstanding securities having the voting
power to elect the Board of Directors of such Restricted Subsidiary
(irrespective of whether or not at the time securities of any other class or
classes of such Restricted Subsidiary will have or might have voting power by
reason of the happening of any contingency) are at the time directly or
indirectly owned or controlled by the Issuer or a Guarantor, or by one or more
wholly owned Restricted Subsidiaries, or by the Issuer or a Guarantor and one or
more wholly owned Restricted Subsidiaries.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Guaranteed Security or
any installment of principal thereof or interest thereon, means the date
specified in such Guaranteed Security as the fixed date on which the principal
of such Guaranteed Security or such installment of principal or interest is due
and payable.
8
<PAGE> 13
"Subsequent Interest Period" has the meaning specified in Section
307(b).
"Subsidiary" means any corporation, limited liability company,
association or other entity of which at least a majority of outstanding
securities have the voting power to elect a majority of the Board of Directors
of such entity (irrespective of whether or not at the time securities of any
other class or classes of such entity shall have or might have voting power by
reason of the happening of any contingency) is at the time directly or
indirectly owned or controlled by the Issuer or a Guarantor, or one or more of
the Subsidiaries, or by the Issuer or a Guarantor and one or more Subsidiaries.
"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" shall 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 Guaranteed Securities of any series shall mean the Trustee with
respect to Guaranteed Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this Indenture 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.
"U.S. Government Obligations" has the meaning specified in Section
1504.
"United States" means the United States of America excluding its
territories and possessions, but including the Commonwealth of Puerto Rico.
"Vice President", when used with respect to the Issuer, a Guarantor 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".
"Yield to Maturity" means the yield to maturity, computed at the time
of issuance of a Guaranteed Security (or, if applicable, at the most recent
redetermination of interest on such Guaranteed Security) and as set forth in
such Guaranteed Security in accordance with generally accepted United States
bond yield computation principles.
Section 102. Compliance Certificates and Opinions. Upon any application
or request by the Issuer or a Guarantor to the Trustee to take any action under
any provision of this Indenture, the Issuer or that Guarantor shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
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<PAGE> 14
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
the individual has made such examination or investigation as is
necessary to enable such individual to express an informed opinion as
to whether or not such covenant or condition has been complied with;
and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Issuer or a Guarantor
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which such officer's
certificate or opinion is based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Issuer or such Guarantor stating that the information with respect to such
factual matters is in the possession of the Issuer or such Guarantor, unless
such counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. 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, made or taken by Holders may be
embodied in and evidenced by one or more written 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 shall
become effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required, to the Issuer or a
Guarantor. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
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<PAGE> 15
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 601) conclusive in favor of
the Trustee and the Issuer or a Guarantor, if made in the manner provided in
this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Issuer may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders of Guaranteed Securities of any series entitled to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action, or to vote on any action, authorized or permitted to be given or taken
by Holders of Guaranteed Securities of such series. If not set by the Issuer
prior to the first solicitation of a Holder of Guaranteed Securities of such
series made by any Person in respect of any such action, or, in the case of any
such vote, prior to such vote, the record date for any such action or vote shall
be the 30th day (or, if later, the date of the most recent list of Holders
required to be provided pursuant to Section 701) prior to such first
solicitation or vote, as the case may be. Notwithstanding the foregoing, the
Issuer may not set a record date for, and the provisions of this paragraph shall
not apply with respect to, the giving or making of any notice, declaration,
request or direction referred to in the next paragraph. If any record date is
set pursuant to this paragraph, the Holders of Outstanding Guaranteed Securities
of the relevant series on such record date, and no other Holders, shall be
entitled to take the relevant action, whether or not such Holders remain Holders
after such record date; provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite principal amount of Outstanding Guaranteed Securities of such
series on such record date. Nothing in this paragraph shall be construed to
prevent the Issuer from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be cancelled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount of Outstanding Guaranteed Securities of the relevant series on the date
such action is taken. Promptly after any record date is set pursuant to this
paragraph, the Issuer, at its own expense, shall cause notice of such record
date, the proposed action by Holders and the applicable Expiration Date to be
given to the Trustee in writing and to each Holder of Guaranteed Securities of
the relevant series in the manner set forth in Section 106.
(d) The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Guaranteed Securities of any series
entitled to join in the giving or making of (i) any Notice of Default, (ii) any
declaration of acceleration referred to in Section 502, (iii) any request to
institute proceedings referred to in Section 507(2) or (iv) any direction
referred to in Section 512, in each case with respect to Guaranteed Securities
of such series. If any record date is set pursuant to this paragraph, the
Holders of Outstanding Guaranteed
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<PAGE> 16
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Guaranteed Securities of such series on such record date. Nothing in this
paragraph shall be construed to prevent the Trustee from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Guaranteed Securities of the
relevant series on the date such action is taken. Promptly after any record date
is set pursuant to this paragraph, the Trustee, at the Issuer's expense, shall
cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Issuer and the Guarantors in
writing and to each Holder of Guaranteed Securities of the relevant series in
the manner set forth in Section 106.
(e) With respect to any record date set pursuant to this Section, the
party hereto which sets such record dates may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to any
earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of Guaranteed Securities of the relevant series in
the manner set forth in Section 106, on or prior to the existing Expiration
Date. If an Expiration Date is not designated with respect to any record date
set pursuant to this Section, the party hereto which set such record date shall
be deemed to have initially designated the 180th day after such record date as
the Expiration Date with respect thereto, subject to its right to change the
Expiration Date as provided in this paragraph. Notwithstanding the foregoing, no
Expiration Date shall be later than the 180th day after the applicable record
date.
(f) Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Guaranteed Security may do so
with regard to all or any part of the principal amount of such Guaranteed
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 part of such principal
amount.
(g) The ownership of Guaranteed Securities shall be proved by the
Security Register.
(h) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Guaranteed Security shall bind every
future Holder of the same Guaranteed Security and the Holder of every Guaranteed
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustee, the Issuer or a Guarantor in reliance thereon, whether
or not notation of such action is made upon such Guaranteed Security.
Section 105. Notices, Etc., to Trustee, Issuer and Guarantors. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
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<PAGE> 17
(i) the Trustee by any Holder, or by the Issuer or a Guarantor
shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate
Trust Office, Attention: Corporate Trust Administration, or
(ii) the Issuer or a Guarantor by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first-class
postage prepaid, to the Issuer or such Guarantor addressed to it at the
address of its principal office specified in the first paragraph of
this instrument or at any other address previously furnished in writing
to the Trustee by the Issuer or such Guarantor.
Section 106. Notice to Holders; Waiver. Where this Indenture provides
for notice to Holders of any event, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his
address as it appears in the Security Register, not later than the latest date
(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 shall 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 shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act. If any provision of
this Indenture limits, qualifies or conflicts with a provision of the Trust
Indenture Act that is required under such Act to be a part of and govern this
Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 109. Successors and Assigns. All covenants and agreements in
this Indenture by the Issuer or a Guarantor shall bind its successors and
assigns, whether so expressed or not.
Section 110. Separability Clause. In case any provision in this
Indenture or in the Guaranteed Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
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Section 111. Benefits of Indenture. Nothing in this Indenture or in the
Guaranteed Securities, express or implied, shall 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.
Section 112. Governing Law. THIS INDENTURE AND THE GUARANTEED
SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO CONTRACTS TO BE PERFORMED WHOLLY WITHIN THE
STATE OF NEW YORK.
Section 113. Legal Holidays. In any case where any Interest Payment
Date, Redemption Date or Stated Maturity of any Guaranteed Security shall not be
a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Guaranteed Securities (other than a
provision of the Guaranteed Securities of any series which specifically states
that such provision shall apply in lieu of this Section)) payment of principal
and any premium and interest 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 no interest shall
accrue for the period from and after such Interest Payment Date, Redemption Date
or Stated Maturity, as the case may be.
Section 114. Appointment of Agent for Service. (a) By the execution and
delivery of this Indenture, United Dominion Industries Limited designates and
appoints the Issuer, in Charlotte, North Carolina, as its authorized agent upon
which process may be served in any suit or proceeding arising out of or relating
to the Guaranteed Securities, the Guarantees or this Indenture which may be
instituted in any Federal or New York State Court located in the Borough of
Manhattan, City and State of New York, but for that purpose only, and agrees
that service of process upon the Issuer, directed to the attention of Corporate
Secretary and written notice of said service given by the Person serving the
same to it, addressed as provided in Section 105, shall be deemed in every
respect effective service of process upon it in any such suit or proceeding in
any Federal or State Court in such Borough, City and State. United Dominion
Industries Limited hereby submits (for the purposes of any such suit or
proceeding) to the jurisdiction of any such court described above in which any
such suit or proceeding is so instituted, and irrevocably waives, to the fullest
extent it may lawfully do so, any objection it may have now or hereafter to the
laying of the venue of any such suit, action or proceeding in any such court and
irrevocably waives, to the fullest extent it may lawfully do so, any claim that
any such suit, action or proceeding brought in any such court has been brought
in an inconvenient forum. Such submission and waiver shall be irrevocable so
long as any of the Guaranteed Securities remain outstanding and such appointment
will be irrevocable until the appointment of a successor by United Dominion
Industries Limited with the consent of the Trustee and such successor's
acceptance of such appointment. Upon such acceptance, United Dominion Industries
Limited shall notify the Trustee, in writing, of the name and address of such
successor. United Dominion Industries Limited further agrees to take any and all
action, including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment of
the Issuer or its successor in full force and effect so long as any of the
applicable Guaranteed Securities shall be outstanding. The
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Trustee shall not be obligated and shall have no responsibility with respect to
any failure by United Dominion Industries Limited to take any such action.
(b) United Dominion Industries Limited agrees, to the fullest extent
that it lawfully may do so, that final judgment in any such suit, action or
proceeding, brought in such a court shall be conclusive and binding upon such
Guarantor, and may be enforced in the courts of Canada (or any other courts of
jurisdictions to which such Guarantor is subject or where any Restricted
Subsidiary or Principal Property is located) by a suit upon such judgment,
provided that service of process is effected upon such Guarantor in the manner
specified in the foregoing paragraph or as otherwise permitted by law; provided,
however, that such Guarantor does not waive, and the foregoing provisions of
this sentence shall not constitute or be deemed to constitute a waiver of (1)
any right to appeal any such judgment, to seek any stay or otherwise to seek
reconsideration or review of such judgment, (2) any stay of execution or levy
pending an appeal from, or a suit, action or proceeding for reconsideration of,
any such judgment, (3) any defense to a claim for punitive damages and the like,
(4) the defense of payment, or (5) any other right or remedy of such Guarantor,
to the extent not expressly waived in accordance with this Section 114.
(c) Nothing in this Section shall affect the right of the Trustee or
any Holder of any Guaranteed Security to serve process in any manner permitted
by applicable law or limit the right of the Trustee or any Holder of any
Guaranteed Security to bring proceedings against such Guarantor in the courts of
any other jurisdiction or jurisdictions.
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally. The Guaranteed Securities of each series
shall be in substantially the form set forth in this Article, or in such other
form as shall be established by or pursuant to a Board Resolution of the Issuer
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 applicable tax laws or the rules of any
securities exchange or automated quotation system on which the Guaranteed
Securities of such series may be listed or traded or the Depositary therefor or
as may, consistently herewith, be determined by the officers executing such
Guaranteed Securities, as evidenced by their execution of the Guaranteed
Securities. If the form of Guaranteed Securities of any series is established by
action taken pursuant to a Board Resolution of the Issuer, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Issuer and of each of the Guarantors delivered to the
Trustee at or prior to the delivery of the Issuer Order and the Guarantor Order
contemplated by Section 303 for the authentication and delivery of such
Guaranteed Securities.
The definitive Guaranteed Securities shall be typewritten, printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner permitted by the rules of any securities exchange or automated
quotation system on which the Guaranteed Securities of such series may be listed
or traded, all as determined by the officers executing such Guaranteed
Securities, as evidenced by their execution of such Guaranteed Securities.
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<PAGE> 20
The Guarantees shall be endorsed on each Guaranteed Security and such
Guarantee for the Guaranteed Securities of a particular series shall be in such
form as is established pursuant to Section 202.
Section 202. Forms of Guarantees. The Guarantee of each Guarantor shall
be endorsed on each Guaranteed Security and for each particular series of
Guaranteed Securities shall be in substantially such form or forms as shall be
established by or pursuant to Board Resolutions of each of the Guarantors (and
including, without limitation, in any Officers' Certificate of an officer
authorized to act in connection with such matter or pursuant to such Board
Resolutions) of each Guarantor or an indenture supplemental hereto, with such
appropriate assertions, omissions, substitutions, and other corrections as are
required or permitted by this Indenture or any indenture supplemental hereto,
and may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may, consistently herewith, be
determined by the officers executing such Guarantees. Such execution of such
Guarantees shall be conclusive evidence as regards the Guarantors as to any such
determination made by the Guarantors.
Section 203. Form of Face of Guaranteed Security. (If applicable,
insert the following legend, or such other legend as may be required by the
Internal Revenue Code or the regulations thereunder:
FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE UNITED STATES
INTERNAL REVENUE CODE OF 1986, AS AMENDED, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT
ON THIS SECURITY IS ____% OF ITS PRINCIPAL AMOUNT, THE ISSUE DATE IS
___________, 20__ [,] [AND] THE YIELD TO MATURITY IS _____% [, THE METHOD USED
TO DETERMINE THE YIELD IS _______________ AND THE AMOUNT OF ORIGINAL ISSUE
DISCOUNT APPLICABLE TO THE SHORT ACCRUAL PERIOD OF ____________, 20__ TO
______________________, 20__ IS ___% OF THE PRINCIPAL AMOUNT OF THIS SECURITY.]
UNITED DOMINION INDUSTRIES, INC.
(Title of Security)
No. _____ $_________________
CUSIP NO._____________
United Dominion Industries, Inc., a corporation duly organized and
existing under the laws of the State of Delaware (herein called the "Issuer",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to ______________, or
registered assigns, the principal sum of ____________ Dollars on
__________________ [if the Guaranteed Security is to bear interest prior to
Maturity, insert --, and to pay interest thereon from ______________ or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on __________ and ____________ in each year,
commencing ____________, at the rate of ___% per annum, until the principal
hereof is paid or made available for payment [if applicable, insert --, and (to
the extent that the payment of such interest shall be legally enforceable) at
the rate of ___% per annum on any overdue principal and premium and on any
overdue installment of interest] [if
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<PAGE> 21
applicable, insert --, provided that any principal and premium, and any such
installment of interest, which is overdue shall bear interest at the rate of
_____% per annum (to the extent permitted by applicable law), from the dates
such amounts are due until they are paid or made available for payment, and such
interest shall be payable on demand]. [If applicable, insert -- The amount of
interest payable for any period shall be computed on the basis of twelve 30-day
months and a 360-day year. The amount of interest payable for any partial period
shall be computed on the basis of a 360-day year of twelve 30-day months and the
days elapsed in any partial month.] In the event that any date on which interest
is payable on this Guaranteed Security is not a Business Day, then a payment of
the interest payable on such date will be made on the next succeeding day which
is a Business Day (and without any interest or other payment in respect of any
such delay) with the same force and effect as if made on the date the payment
was originally payable. A "Business Day" shall mean, when used with respect to
any Place of Payment, each Monday, Tuesday, Wednesday, Thursday and Friday which
is not a day on which banking institutions in that Place of Payment are
authorized or obligated by law or executive order to close.] The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose name this
Guaranteed Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the _____________ or ____________ (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Guaranteed Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Guaranteed Securities of this series not less than 10 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 or
automated quotation system on which the Guaranteed Securities of this series may
be listed or traded, and upon such notice as may be required by such exchange or
automated quotation system, all as more fully provided in said Indenture).
[If the Guaranteed Security is not to bear interest prior to Maturity,
insert -- The principal of this Guaranteed Security shall not bear interest
except in the case of a default in payment of principal upon acceleration, upon
redemption or at Stated Maturity and in such case the overdue principal and any
overdue premium of this Guaranteed Security shall bear interest at the rate of
____% per annum (to the extent that the payment of such interest shall be
legally enforceable), which shall accrue from the date of such default in
payment to the date payment of such principal has been made or duly provided
for. Interest on any overdue principal shall be payable on demand. Any such
interest on any overdue principal that is not so paid on demand shall bear
interest at the rate of ____% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest has been made or duly
provided for, and such interest shall also be payable on demand.)]
Payment of the principal of (and premium, if any) and [if applicable,
insert -- any such] interest on this Guaranteed Security will be made at the
office or agency of the Issuer maintained for that purpose in New York, New York
or Charlotte, North Carolina, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public
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<PAGE> 22
and private debts [if applicable, insert --; provided, however, that at the
option of the Issuer payment of interest may be made (i) by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register, or (ii) by wire transfer in immediately available funds at
such place and to such account as may be designated in writing prior to the
Regular Record Date by the Person entitled thereto as specified in the Security
Register].
Reference is hereby made to the further provisions of this Guaranteed
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Guaranteed Security shall not be entitled to any benefit under the Indenture or
be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
UNITED DOMINION INDUSTRIES, INC.
--------------------------------
By
------------------------------
Attest:
- --------------------------
--------------------------------
By
------------------------------
Attest:
- --------------------------
Section 204. Form of Reverse of Guaranteed Security. This Guaranteed
Security is one of a duly authorized issue of securities of the Issuer (herein
called the "Guaranteed Securities"), issued and to be issued in one or more
series under an Indenture, dated as of ____________, (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), among the Issuer, the Guarantors and First Union National Bank, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Issuer, the Guarantors, the
Trustee and the Holders of the Guaranteed Securities and of the terms upon which
the Guaranteed Securities are, and are to be, authenticated and delivered. This
Guaranteed Security is one of the series designated on the face hereof [if
applicable, insert -- limited in aggregate principal amount to $___________].
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[If applicable, insert -- The Guaranteed Securities of this series are
subject to redemption.]
[If applicable, insert -- The interest rate (or the spread or spread
multiplier used to calculate such interest rate, if applicable) on this
Guaranteed Security may be reset by the Issuer on ____________ (each an
"Optional Reset Date"). The Issuer may exercise such option with respect to this
Guaranteed Security by notifying the Trustee of such exercise at least 50 but
not more than 60 days prior to an Optional Reset Date for this Guaranteed
Security. Not later than 40 days prior to each Optional Reset Date, the Trustee
shall transmit, in the manner provided for in Section 106 of the Indenture, to
the Holder of this Guaranteed Security a notice (the "Reset Notice") indicating
whether the Issuer has elected to reset the interest rate (or the spread or
spread multiplier used to calculate such interest rate, if applicable), and if
so (i) such new interest rate (or such new spread or spread multiplier, if
applicable) and (ii) the provisions, if any, for redemption during the period
from such Optional Reset Date to the next Optional Reset Date or if there is no
such next Optional Reset Date, to the Stated Maturity of this Guaranteed
Security (each such period a "Subsequent Interest Period"), including the date
or dates on which or the period or periods during which and the price or prices
at which such redemption may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the
Optional Reset Date, the Issuer may, at its option, revoke the interest rate (or
the spread or spread multiplier used to calculate such interest rate, if
applicable) provided for in the Reset Notice and establish an interest rate (or
a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread
multiplier, if applicable) provided for in the Reset Notice, for the Subsequent
Interest Period by causing the Trustee to transmit, in the manner provided for
in Section 106 of the Indenture, notice of such higher interest rate (or such
higher spread or spread multiplier, if applicable) to the Holder of this
Guaranteed Security. Such notice shall be irrevocable. All Guaranteed Securities
of this series with respect to which the interest rate (or the spread or spread
multiplier used to calculate such interest rate, if applicable) is reset on an
Optional Reset Date, and with respect to which the Holders of such Guaranteed
Securities have not tendered such Guaranteed Securities for repayment (or have
validly revoked any such tender) pursuant to the next succeeding paragraph, will
bear such higher interest rate (or such higher spread or spread multiplier, if
applicable).
The Holder of this Guaranteed Security will have the option to elect
repayment by the Issuer of the principal of this Guaranteed Security on each
Optional Reset Date at a price equal to the principal amount hereof plus
interest accrued to such Optional Reset Date. In order to obtain repayment on an
Optional Reset Date, the Holder must follow the procedures set forth in Article
Fourteen of the Indenture for repayment at the option of Holders except that the
period for delivery or notification to the Trustee shall be at least 25 but not
more than 35 days prior to such Optional Reset Date and except that, if the
Holder has tendered this Guaranteed Security for repayment pursuant to the Reset
Notice, the Holder may, by written notice to the Trustee, revoke such tender or
repayment until the close of business on the tenth day before such Optional
Reset Date.]
[If applicable, insert -- The Stated Maturity of this Guaranteed
Security may be extended at the option of the Issuer for _______________ (each
an "Extension Period") up to but not
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beyond ____________ (the "Final Maturity"). The Issuer may exercise such option
with respect to this Guaranteed Security by notifying the Trustee of such
exercise at least 50 but not more than 60 days prior to the Stated Maturity of
this Guaranteed Security in effect prior to the exercise of such option (the
"Original Stated Maturity"). If the Issuer exercises such option, the Trustee
shall transmit, in the manner provided for in Section 106 of the Indenture, to
the Holder of this Guaranteed Security not later than 40 days prior to the
Original Stated Maturity a notice (the "Extension Notice") indicating (i) the
election of the Issuer to extend the Maturity, (ii) the new Stated Maturity,
(iii) the interest rate applicable to the Extension Period and (iv) the
provisions, if any, for redemption during such Extension Period. Upon the
Trustee's transmittal of the Extension Notice, the Stated Maturity of this
Guaranteed Security shall be extended automatically and, except as modified by
the Extension Notice and as described in the next paragraph, this Guaranteed
Security will have the same terms as prior to the transmittal of such Extension
Notice.
Notwithstanding the foregoing, not later than 20 days before the
Original Stated Maturity of this Guaranteed Security, the Issuer may, at its
option, revoke the interest rate provided for in the Extension Notice and
establish a higher interest rate for the Extension Period by causing the Trustee
to transmit, in the manner provided for in Section 106, notice of such higher
interest rate to the Holder of this Guaranteed Security. Such notice shall be
irrevocable. All Guaranteed Securities of this series with respect to which the
Stated Maturity is extended will bear such higher interest rate.
If the Issuer extends the Maturity of this Guaranteed Security, the
Holder will have the option to elect repayment of this Guaranteed Security by
the Issuer on the Original Stated Maturity at a price equal to the principal
amount hereof, plus interest accrued to such date. In order to obtain repayment
on the Original Stated Maturity once the Issuer has extended the Maturity
hereof, the Holder hereof must follow the procedures set forth in Article
Fourteen of the Indenture for repayment at the option of Holders, except that
the period for delivery or notification to the Trustee shall be at least 25 but
not more than 35 days prior to the Original Stated Maturity and except that, if
the Holder has tendered this Guaranteed Security for repayment pursuant to an
Extension Notice, the Holder may, by written notice to the Trustee, revoke such
tender for repayment until the close of business on the tenth day before the
Original Stated Maturity.]
[If applicable, insert -- The Guaranteed Securities of this series are
subject to redemption upon not less than 30 days' notice by mail, [if
applicable, insert -- (1) on ___________ in any year commencing with the year
_____________ and ending with the year __________ through operation of the
sinking fund for this series at a Redemption Price equal to 100% of the
principal amount, and (2)] at any time [if applicable insert -- on or after
______________, 20__], as a whole or in part, at the election of the Issuer, at
the following Redemption Prices (expressed as percentages of the principal
amount): If redeemed [on or before _________________, ___%, and if redeemed]
during the 12-month period beginning _____________ of the years indicated,
Redemption Redemption
Year Price Year Price
----- ---- -----
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<PAGE> 25
and thereafter at a Redemption Price equal to ______% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Guaranteed
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 Guaranteed Securities of this series are
subject to redemption upon not less than 30 days' notice by mail, (1) on
___________ in any year commencing with the year _______ and ending with the
year ________ through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below,
and (2) at any time (on or after _____________), as a whole or in part, at the
election of the Issuer, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning ____________ of the years indicated,
Redemption Price Redemption Price For
For Redemption Redemption Otherwise
Through Operation Than Through Operation
Year of the 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 Guaranteed 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 Issuer may
not, prior to _______________, redeem any Guaranteed Securities of this series
as contemplated by (Clause (2) 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 Issuer (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 (not less than $___________ ("mandatory
sinking fund") and not more than) $__________ aggregate principal amount of
Guaranteed Securities of this series. Guaranteed Securities of this series
acquired or redeemed by the Issuer otherwise than through (mandatory) sinking
fund payments may be credited against subsequent (mandatory) sinking fund
payments otherwise required to be made (in the inverse order in which they
become due).]
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<PAGE> 26
[If the Guaranteed Security is subject to redemption of any kind,
insert -- In the event of redemption of this Guaranteed Security in part only, a
new Guaranteed Security or Guaranteed 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 the Guaranteed Security is not an Original Issue Discount Security,
insert --If an Event of Default with respect to Guaranteed Securities of this
series shall occur and be continuing, the principal of the Guaranteed Securities
of this series may be declared due and payable in the manner and with the effect
provided in the Indenture.]
[The Indenture contains provisions for Defeasance at any time of [the
entire indebtedness of this Guaranteed Security] [or] [certain restrictive
covenants and Events of Default with respect to this Guaranteed Security] [, in
each case] upon compliance with certain conditions set forth in the Indenture.]
[If the Guaranteed Security is an Original Issue Discount Security,
insert -- If an Event of Default with respect to Guaranteed Securities of this
series shall occur and be continuing, [the] [an amount of] principal of the
Guaranteed Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture. Such amount shall be equal
to --insert formula for determining the amount. Upon payment (i) of the amount
of principal so declared due and payable and (ii) of interest on any overdue
principal and overdue interest (in each case to the extent that the payment of
such interest shall be legally enforceable), all of the Issuer's obligations in
respect of the payment of the principal of and interest, if any, on the
Guaranteed Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the Guarantors and the rights of the Holders of the Guaranteed
Securities of each series to be affected under the Indenture at any time by the
Issuer, the Guarantors and the Trustee with the consent of the Holders of a
majority in principal amount of the Guaranteed 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 Guaranteed Securities of each series at the time Outstanding, on behalf
of the Holders of all Guaranteed Securities of such series, to waive compliance
by the Issuer and the Guarantors 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 Guaranteed Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Guaranteed
Security and of any Guaranteed Security issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Guaranteed Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Guaranteed Security shall not have the right to institute any
proceeding with respect to the Indenture 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 Guaranteed Securities of this series, the Holders of not
less than 25% in principal amount of the Guaranteed 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
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<PAGE> 27
Default as Trustee and offered the Trustee indemnity satisfactory to the Trustee
in its reasonable judgment, and the Trustee shall not have received from the
Holders of a majority in principal amount of Guaranteed Securities of this
series at the time Outstanding a direction inconsistent with such request, and
shall have failed to institute any such proceeding, for 60 days after receipt of
such notice, request and offer of indemnity. The foregoing shall not apply to
any suit instituted by the Holder of this Guaranteed 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
Guaranteed Security or of the Indenture shall alter or impair the obligation of
each of the Issuer and the Guarantors, which is absolute and unconditional, to
pay the principal of and any premium and interest on this Guaranteed 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 Guaranteed Security is registerable in the
Security Register, upon surrender of this Guaranteed Security for registration
of transfer at the office or agency of the Issuer in any place where the
principal of and any premium and interest on this Guaranteed Security are
payable, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Issuer and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Guaranteed 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 Guaranteed Securities of this series are issuable only in
registered form without coupons in denominations of $________ and any integral
multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Guaranteed Securities of this series are
exchangeable for a like aggregate principal amount of Guaranteed Securities of
this series and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Issuer 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 Guaranteed Security for registration
of transfer, the Issuer, the Guarantors, the Trustee and any agent of the
Issuer, the Guarantors or the Trustee may treat the Person in whose name this
Guaranteed Security is registered as the owner hereof for all purposes, whether
or not this Guaranteed Security be overdue, and neither the Issuer, the
Guarantors, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Guaranteed Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THIS GUARANTEED SECURITY SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
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Section 205. Additional Provisions Required in Global Security. Any
Global Security issued hereunder shall, in addition to the provisions contained
in Sections 203 and 204, bear a legend in substantially the following form:
"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 OF A DEPOSITARY. THIS SECURITY IS EXCHANGEABLE
FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY."
Section 206. Form of Trustee's Certificate of Authentication. The
Trustee's certificates of authentication shall be in substantially the following
form:
This is one of the Guaranteed Securities of the series designated
therein referred to in the within-mentioned Indenture.
Dated:____________ FIRST UNION NATIONAL BANK,
, As Trustee
-------------------------
By
-----------------------------------
Authorized Signatory
ARTICLE THREE
THE GUARANTEED SECURITIES
Section 301. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Guaranteed Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Guaranteed Securities may be issued in one or more series. There
shall be established in or pursuant to Board Resolutions of the Issuer and each
of the Guarantors and, subject to Section 303, set forth, or determined in the
manner provided, in Officers' Certificates or in an Issuer Order and Guarantor
Orders, or established in one or more indentures supplemental hereto, prior to
the issuance of Guaranteed Securities of any series,
(1) the title and designation of the Guaranteed Securities of
the series (which shall distinguish the Guaranteed Securities of the
series from Guaranteed Securities of any other series);
(2) any limit upon the aggregate principal amount of the
Guaranteed Securities of the series which may be authenticated and
delivered under this Indenture
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<PAGE> 29
(except for Guaranteed Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Guaranteed Securities of the series pursuant to Section 304, 305, 306,
906 or 1107 and except for any Guaranteed Securities which, pursuant to
Section 303, are deemed never to have been authenticated and delivered
hereunder); provided, however, that the authorized aggregate principal
amount of such series may be increased above such amount by a Board
Resolution of the Issuer to such effect;
(3) the Person to whom any interest on a Guaranteed Security
of the series shall be payable, if other than the Person in whose name
that Guaranteed Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest;
(4) the price (expressed as a percentage of the aggregate
principal amount of the Guaranteed Securities of the series) at which
the Guaranteed Securities of the series will be issued;
(5) the date or dates on which the principal of the Guaranteed
Securities of the series is payable, or the method by which such date
or dates shall be determined or extended;
(6) the rate or rates at which the Guaranteed Securities of
the series shall bear interest, if any, or the method by which such
rate or rates shall be determined, the date or dates from which such
interest shall accrue, or the method by which such date or dates shall
be determined, the Interest Payment Dates on which any such interest
shall be payable and the Regular Record Date for any interest payable
on any Interest Payment Date, or the method by which such date or dates
shall be determined, and the basis upon which interest shall be
calculated if other than that of a 360-day year of twelve 30-day
months;
(7) the place or places where the principal of and any premium
and interest on Guaranteed Securities of the series shall be payable,
the place or places where the Guaranteed Securities of such series may
be presented for registration of transfer or exchange, and the place or
places where notices and demands to or upon the Issuer or a Guarantor
in respect of the Guaranteed Securities of such series may be made;
(8) the period or periods within or the date or dates on
which, the price or prices at which and the terms and conditions upon
which Guaranteed Securities of the series may be redeemed, in whole or
in part, at the option of the Issuer and, if other than by a Board
Resolution, the manner in which any election by the Issuer to redeem
the Guaranteed Securities shall be evidenced;
(9) the obligation or the right, if any, of the Issuer to
redeem or purchase any Guaranteed Securities of the series pursuant to
any sinking fund, amortization or analogous provisions or at the option
of a Holder thereof and the period or periods within which, the price
or prices at which, the currency or currencies (including currency unit
or
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<PAGE> 30
units) in which and the terms and conditions upon which Guaranteed
Securities of the series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
(10) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Guaranteed Securities of
the series shall be issuable;
(11) the currency, currencies or currency units in which
payment of the principal of and any premium and interest on any
Guaranteed Securities of the series shall 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 any purpose, including for purposes of the definition of
"Outstanding" in Section 101;
(12) if the amount of payments of principal of or any premium
or interest on any Guaranteed Securities of the series may be
determined with reference to an index or pursuant to a formula
(including by reference to currency or interest rates), the manner in
which such amounts shall be determined;
(13) if the principal of or any premium or interest on any
Guaranteed Securities of the series is to be payable, at the election
of the Issuer or a Holder thereof, in one or more currencies or
currency units other than that or those in which the Guaranteed
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 Guaranteed Securities of such series as to which such
election is made shall be payable, the period or the periods within or
the date or dates on which and the terms and conditions upon which such
election is to be made and the amount so payable (or the manner in
which such amount shall be determined);
(14) the percentage of the principal amount at which such
Guaranteed Securities will be issued and, if other than the principal
amount thereof, the portion of the principal amount of Guaranteed
Securities of the series which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 502 or the
method by which such portion shall be determined;
(15) if the principal amount payable at the Stated Maturity of
any Guaranteed Securities of the series will not be determinable as of
any one or more dates prior to the Stated Maturity, the amount which
shall be deemed to be the principal amount of such Guaranteed
Securities as of any such date for any purpose thereunder or hereunder,
including the principal amount thereof which shall be due and payable
upon any Maturity other than the Stated Maturity or which shall be
deemed to be Outstanding as of any date prior to the Stated Maturity
(or, in any such case, the manner in which such amount deemed to be the
principal amount shall be determined);
(16) if applicable, that the Guaranteed Securities of the
series, in whole or any specified part, shall not be defeasible or
shall be defeasible in a manner varying from Section 1502 and Section
1503 and, if other than by a Board Resolution, the manner in which any
election to defease such Guaranteed Securities shall be evidenced;
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<PAGE> 31
(17) whether the Guaranteed Securities of the series, or any
portion thereof, shall initially be issuable in the form of a temporary
Global Security representing all or such portion of the Guaranteed
Securities of such series and provisions for the exchange of such
temporary Global Security for definitive Guaranteed Securities of such
series;
(18) if applicable, that any Guaranteed Securities of the
series, or any portion thereof, shall be issuable in whole or in part
in the form of one or more Global Securities and, in such case, the
respective Depositaries for such Global Securities, the form of any
legend or legends which shall be borne by any such Global Security in
addition to or in lieu of that set forth in Section 205 and any
circumstances in addition to or in lieu of those set forth in Clause
(2) of the last paragraph of Section 305 in which any such Global
Security may be exchanged in whole or in part for Guaranteed Securities
registered, and whether and under what circumstances any transfer of
such Global Security in whole or in part may be registered, in the name
or names of Persons other than the Depositary for such Global Security
or a nominee thereof;
(19) whether Article Fifteen shall apply to the Guaranteed
Securities of such series; and
(20) if applicable, that the Guaranteed Securities of the
series, in whole or any specified part, shall be subject to the
optional interest reset provisions of Section 307(b);
(21) if applicable, that the Guaranteed Securities of the
series, in whole or any specified part, shall be subject to the
optional extension of maturity provisions of Section 308;
(22) any addition to or change in the Events of Default which
applies to any Guaranteed Securities of the series and any change in
the right of the Trustee or the requisite Holders of such Guaranteed
Securities to declare the principal amount thereof due and payable
pursuant to Section 502;
(23) any addition to or change in the covenants set forth in
Article Ten which applies to Guaranteed Securities of the series;
(24) the additions or changes, if any, to this Indenture with
respect to the Guaranteed Securities of such series as shall be
necessary to permit or facilitate the issuance of the Guaranteed
Securities of such series in bearer form, registrable or not
registrable as to principal, and with or without interest coupons;
(25) the appointment of any Paying Agent or Agents for the
Guaranteed Securities of such series;
(26) the terms of any right to convert or exchange Guaranteed
Securities of such series into any other securities or property of the
Issuer, and the additions or
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<PAGE> 32
changes, if any, to this Indenture with respect to the Guaranteed
Securities of such series to permit or facilitate such conversion or
exchange;
(27) the terms and conditions, if any, pursuant to which the
Guaranteed Securities of the series are secured;
(28) any restriction or condition on the transferability of
the Guaranteed Securities of such series; and
(29) any other terms of the Guaranteed Securities of such
series (which terms shall not be inconsistent with the provisions of
this Indenture, except as permitted by Section 901(5)).
All Guaranteed Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided
herein or in or pursuant to the Board Resolution referred to above and (subject
to Section 303) set forth, or determined in the manner provided, in the
Officers' Certificate referred to above or in any indenture supplemental hereto.
The aggregate principal amount of the Guaranteed Securities may be
changed from time to time as provided in Section 301(2). All of the Guaranteed
Securities need not be issued at the same time and, unless otherwise provided, a
series may be reopened, without notice to or the consent of any Holder, for
issuances of additional Guaranteed Securities of that series, and the additional
Guaranteed Securities will be consolidated and form a single series with those
Guaranteed Securities.
If any of the terms of the Guaranteed Securities of such series are
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Issuer and each of the Guarantors and delivered to
the Trustee at or prior to the delivery of the Officers' Certificate or Issuer
Order setting forth the terms of the series.
Section 302. Denominations. Unless otherwise provided in Board
Resolutions of the Issuer and the Guarantors or in one or more indentures
supplemental hereto with respect to Guaranteed Securities of a series, and
except for Global Securities, the Guaranteed Securities of each series shall be
issuable only in registered form without coupons and only in such denominations
as shall be specified as contemplated by Section 301. In the absence of any such
provisions with respect to the Guaranteed Securities of any series, the
Guaranteed Securities of such series shall be issuable in denominations of
$1,000 and any integral multiple thereof.
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<PAGE> 33
Section 303. Execution, Authentication, Delivery and Dating. The
Guaranteed Securities shall be executed on behalf of the Issuer by its Chairman
of the Board, its Vice Chairman of the Board, its Chief Executive Officer, its
President or one of its Vice Presidents. The signature of any of these officers
on the Guaranteed Securities may be manual or facsimile.
Guaranteed Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Issuer shall bind
the Issuer, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Guaranteed
Securities or did not hold such offices at the date of such Guaranteed
Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Issuer may deliver Guaranteed Securities of any Series
executed by the Issuer and having endorsed thereon the Guarantees executed by
each of the Guarantors, to the Trustee for authentication, together with an
Issuer Order for the authentication and delivery of such Guaranteed Securities,
and the Trustee in accordance with the Issuer Order shall authenticate and
deliver such Guaranteed Securities. If the form or terms of the Guaranteed
Securities of the series have been established in or pursuant to one or more
Board Resolutions as permitted by Sections 201 and 301, in authenticating such
Guaranteed Securities, and accepting the additional responsibilities under this
Indenture in relation to such Guaranteed Securities, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(a) if the form of such Guaranteed Securities has been established by
or pursuant to Board Resolution as permitted by Section 201, that such form has
been established in conformity with the provisions of this Indenture;
(b) if the terms of such Guaranteed Securities have been established by
or pursuant to Board Resolutions as permitted by Section 301, that such terms
have been established in conformity with the provisions of this Indenture; and
(c) that such Guaranteed Securities, when authenticated and delivered
by the Trustee and issued by the Issuer and having endorsed thereon the
Guarantees executed by each of the Guarantors in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Issuer and each of the Guarantors enforceable
in accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not
be required to authenticate such Guaranteed Securities if the issue of such
Guaranteed Securities pursuant to this Indenture will affect the Trustee's own
rights, duties or immunities under the Guaranteed Securities and this Indenture
or otherwise in a manner which is not reasonably acceptable to the Trustee.
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<PAGE> 34
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Guaranteed Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers'
Certificate or Issuer Order otherwise required pursuant to Section 301 or the
Issuer Order and Opinion of Counsel otherwise required pursuant to such
preceding paragraph at or prior to the time of authentication of each Guaranteed
Security of such series if such documents are delivered at or prior to the
authentication upon original issuance of the first Guaranteed Security of such
series to be issued.
Each Guaranteed Security shall be dated the date of its authentication.
No Guaranteed Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Guaranteed Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature, and such
certificate upon any Guaranteed Security shall be conclusive evidence, and the
only evidence, that such Guaranteed Security has been duly authenticated and
delivered hereunder. Notwithstanding the foregoing, if any Guaranteed Security
shall have been authenticated and delivered hereunder but never issued and sold
by the Issuer, and the Issuer shall deliver such Guaranteed Security to the
Trustee for cancellation as provided in Section 310, for all purposes of this
Indenture such Guaranteed Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
Reference is made to Section 1302 concerning the execution and delivery
of the Guarantees.
Section 304. Temporary Securities. Pending the preparation of
definitive Guaranteed Securities of any series, the Issuer may execute, and upon
Issuer Order the Trustee shall authenticate and deliver, temporary Guaranteed
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Guaranteed Securities of such series in lieu of which they are
issued and having endorsed thereon the Guarantees executed by each of the
Guarantors substantially of the tenor of the definitive Guarantee, and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Guaranteed Securities and such Guarantees may determine,
as evidenced by their execution of such Guaranteed Securities and such
Guarantees.
If temporary Guaranteed Securities of any series are issued, the Issuer
and each of the Guarantors will cause definitive Guaranteed Securities of that
series to be prepared without unreasonable delay. After the preparation of
definitive Guaranteed Securities of such series, the temporary Guaranteed
Securities of such series shall be exchangeable for definitive Guaranteed
Securities of such series upon surrender of the temporary Guaranteed Securities
of such series at the office or agency of the Issuer in a Place of Payment for
that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Guaranteed Securities of any series the Issuer shall
execute and the Trustee shall authenticate and deliver in exchange therefor one
or more definitive Guaranteed Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor, having
endorsed thereon the Guarantees executed by each of the Guarantors. Until so
exchanged the temporary Guaranteed
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Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Guaranteed Securities of such series and
tenor.
Section 305. Registration, Registration of Transfer and Exchange. The
Issuer shall cause to be kept at the Corporate Trust Office of the Trustee a
register (the register maintained in such office and in any other office or
agency of the Issuer in a Place of Payment being herein sometimes collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Issuer shall provide for the registration
of Guaranteed Securities and of transfers of Guaranteed Securities. The Trustee
is hereby appointed "Security Registrar" for the purpose of registering
Guaranteed Securities and transfers of Guaranteed Securities as herein provided.
If any indenture supplemental hereto refers to any transfer agents (in addition
to the Security Registrar) initially designated by the Issuer with respect to
any series of Guaranteed Securities, the Issuer may at any time rescind the
designation of any such transfer agent or approve a change in the location
through which any such transfer agent acts, provided that the Issuer maintains a
transfer agent in each Place of Payment for such series. The Issuer may at any
time designate additional transfer agents with respect to any series of
Guaranteed Securities.
Upon surrender for registration of transfer of any Guaranteed Security
of any series at the office or agency of the Issuer in a Place of Payment for
that series, the Issuer shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Guaranteed Securities of the same series, of any authorized denominations
and of a like aggregate principal amount and tenor and each having endorsed
thereon the Guarantees executed by each of the Guarantors.
At the option of the Holder, Guaranteed Securities of any series may be
exchanged for other Guaranteed Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Guaranteed Securities to be exchanged at such office or agency. Whenever
any Guaranteed Securities are so surrendered for exchange, the Issuer shall
execute, and the Trustee shall authenticate and deliver, the Guaranteed
Securities, each having endorsed thereon the Guarantees executed by each of the
Guarantors, which the Holder making the exchange is entitled to receive.
All Guaranteed Securities issued upon any registration of transfer or
exchange of Guaranteed Securities shall be the valid obligations of the Issuer
and each of the Guarantors, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Guaranteed Securities surrendered upon
such registration of transfer or exchange.
Every Guaranteed Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Issuer or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Guaranteed Securities, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or
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exchange of Guaranteed Securities, other than exchanges pursuant to Section 304,
906 or 1107 not involving any transfer.
Neither the Trustee nor the Issuer shall be required, pursuant to the
provisions of this Section, (A) to issue, register the transfer of or exchange
any Guaranteed Securities of any series (or of any series and specified tenor,
as the case may be) during a period beginning at the opening of business 15 days
before the day of the mailing of a notice of redemption of any such Guaranteed
Securities selected for redemption under Section 1103 and ending at the close of
business on the day of such mailing, or (B) to register the transfer of or
exchange any Guaranteed Security so selected for redemption, in whole or in
part, except, in the case of any Guaranteed Security to be redeemed in part, any
portion not to be redeemed.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only
to Global Securities:
(1) Each Global Security authenticated under this Indenture
shall be registered in the name of the Depositary designated for such
Global Security or a nominee thereof and delivered to such Depositary
or a nominee thereof or custodian therefor, and each such Global
Security shall constitute a single Guaranteed Security for all purposes
of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Guaranteed
Securities registered, and no transfer of a Global Security in whole or
in part may be registered, in the name of any Person other than the
Depositary for such Global Security or a nominee thereof unless (A)
such Depositary (i) has notified the Issuer that it is unwilling or
unable to continue as Depositary for such Global Security or (ii) at
any time has ceased to be a clearing agency registered under the
Exchange Act of 1934, as amended, in each case, unless the Issuer has
approved a successor Depositary within 90 days, (B) there shall have
occurred and be continuing an Event of Default with respect to the
Guaranteed Securities, (C) the Issuer in its sole discretion determines
that such Global Security will be so exchangeable or transferable or
(D) there shall exist such circumstances, if any, in addition to or in
lieu of the foregoing as have been specified for this purpose as
contemplated by Section 301.
(3) Subject to Clause (2) above, any exchange of a Global
Security for other Guaranteed Securities may be made in whole or in
part, and all Guaranteed Securities issued in exchange for a Global
Security or any portion thereof shall be registered in such names as
the Depositary for such Global Security shall direct.
(4) Every Guaranteed Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Security or any portion thereof, whether pursuant to this Section,
Section 304, 306, 906 or 1107 or otherwise, shall be authenticated and
delivered in the form of, and shall be, a Global Security, unless such
Guaranteed Security is registered in the name of a Person other than
the Depositary for such Global Security or a nominee thereof.
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Section 306. Mutilated, Destroyed, Lost and Stolen Guaranteed
Securities. If any mutilated Guaranteed Security is surrendered to the Trustee
together with such security or indemnity as may be required by the Issuer, the
Guarantors or the Trustee to save each of them harmless, the Issuer shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Guaranteed Security having endorsed thereon the Guarantees executed by each
of the Guarantors of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Issuer, the Guarantors and the
Trustee (i) evidence to their satisfaction of the destruction, loss or theft of
any Guaranteed 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 Issuer, the Guarantors or the Trustee that such
Guaranteed Security has been acquired by a bona fide purchaser, the Issuer shall
execute and the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Guaranteed Security, a new Guaranteed Security of the
same series and of like tenor and principal amount, having endorsed thereon the
Guarantees executed by each of the Guarantors and bearing a number not
contemporaneously outstanding. If, after the delivery of such new Guaranteed
Security, a bona fide purchaser of the original Guaranteed Security in lieu of
which such new Guaranteed Security was issued presents for payment or
registration such original Guaranteed Security, the Trustee shall be entitled to
recover such new Guaranteed Security from the party to whom it was delivered or
any party taking therefrom, except a bona fide purchaser, and shall be entitled
to recover upon the security or indemnity provided therefor to the extent of any
loss, damage, cost or expense incurred by the Issuer, the Guarantors and the
Trustee in connection therewith.
In case any such mutilated, destroyed, lost or stolen Guaranteed
Security has become or is about to become due and payable, the Issuer in its
discretion may, instead of issuing a new Guaranteed Security, pay such
Guaranteed Security.
Upon the issuance of any new Guaranteed Security under this Section,
the Issuer 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 counsel to the Issuer and the
Guarantors and of the Trustee) connected therewith.
Every new Guaranteed Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Guaranteed Security shall
constitute an original additional contractual obligation of the Issuer and each
of the Guarantors, whether or not the destroyed, lost or stolen Guaranteed
Security shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Guaranteed Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Guaranteed Securities.
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Section 307. Payment of Interest; Interest Rights Preserved; Optional
Interest Rate.
(a) Except as otherwise provided as contemplated by Section 301 with
respect to any series of Guaranteed Securities, interest on any Guaranteed
Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Guaranteed
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest in respect of Guaranteed
Securities of such series, except that, unless otherwise provided in the
Guaranteed Securities of such series, interest payable on the Stated Maturity of
the principal of a Guaranteed Security shall be paid to the Person to whom
principal is paid. The initial payment of interest on any Guaranteed Security of
any series which is issued between a Regular Record Date and the related
Interest Payment Date shall be payable as provided in such Guaranteed Security
or in the Board Resolutions or one or more supplemental indentures hereto
pursuant to Section 301 with respect to the related series of Guaranteed
Securities. Unless otherwise provided pursuant to Section 301 and except with
respect to Guaranteed Securities represented by a Global Security, the principal
and any premium and interest on the Guaranteed Securities will be payable at the
office of the Security Registrar. Except in the case of a Global Security, at
the option of the Issuer pursuant to a Board Resolution, interest on any series
of Guaranteed Securities may be paid (i) by check mailed to the address of the
Person entitled thereto as it shall appear on the Security Register of such
series or (ii) by wire transfer in immediately available funds at such place and
to such account as designated in writing by the Person entitled thereto as
specified in the Security Register of such series.
Any Paying Agents will be identified in a supplemental indenture
hereto. The Issuer may at any time designate additional Paying Agents or rescind
the designation of any Paying Agent; however, the Issuer and each of the
Guarantors at all times will be required to maintain a Paying Agent in each
Place of Payment for each series of Guaranteed Securities.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Guaranteed Securities, any interest on any Guaranteed Security
of any series which is payable, but is not timely paid, punctually paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted Interest")
shall 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 Issuer or a Guarantor, at its election in each case, as provided in
Clause (1) or (2) below:
(1) The Issuer or the Guarantor may elect to make payment of
any Defaulted Interest to the Persons in whose names the Guaranteed
Securities of such series in respect of which interest is in default
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Issuer or a Guarantor, as the case may be, shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Guaranteed Security of such series and the date of the proposed
payment, and at the same time the Issuer or the Guarantor, as the case
may be, shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment,
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such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Issuer or the
Guarantor, as the case may be, of such Special Record Date and, in the
name and at the expense of the Issuer or such Guarantor, shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Guaranteed Securities of such series at his address
as it appears in the Security Register, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Guaranteed Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Issuer or a Guarantor, as the case may be, may make
payment of any Defaulted Interest on the Guaranteed Securities of any
series in any other lawful manner not inconsistent with the
requirements of any securities exchange or automated quotation system
on which such Guaranteed Securities may be listed or traded, and upon
such notice as may be required by such exchange or automated quotation
system, if, after notice given by the Issuer or the Guarantor, as the
case may be, to the Trustee of the proposed payment pursuant to this
Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Guaranteed Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Guaranteed Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Guaranteed Security.
(b) The provisions of this Section 307(b) may be made applicable to any
series of Guaranteed Securities pursuant to Section 301 (with such
modifications, additions or substitutions as may be specified pursuant to such
Section 301). The interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable) on any Guaranteed Security of such
series may be reset by the Issuer on the date or dates specified on the face of
such Guaranteed Security (each an "Optional Reset Date"). The Issuer may
exercise such option with respect to such Guaranteed Security by notifying the
Trustee of such exercise at least 50 but not more than 60 days prior to an
Optional Reset Date for such Guaranteed Security. Not later than 40 days prior
to each Optional Reset Date, the Trustee shall transmit, in the manner provided
for in Section 106, to the Holder of any such Guaranteed Security a notice (the
"Reset Notice") indicating whether the Issuer has elected to reset the interest
rate (or the spread or spread multiplier used to calculate such interest rate,
if applicable), and if so (i) such new interest rate (or such new spread or
spread multiplier, if applicable) and (ii) the provisions, if any, for
redemption during the period from such Optional Reset Date to the next Optional
Reset Date or if there is no such next Optional Reset Date, to the Stated
Maturity of such Guaranteed Security
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(each such period a "Subsequent Interest Period"), including the date or dates
on which or the period or periods during which and the price or prices at which
such redemption may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the
Optional Reset Date, the Issuer may, at its option, revoke the interest rate (or
the spread or spread multiplier used to calculate such interest rate, if
applicable) provided for in the Reset Notice and establish an interest rate (or
a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread
multiplier, if applicable) provided for in the Reset Notice, for the Subsequent
Interest Period by causing the Trustee to transmit, in the manner provided for
in Section 106, notice of such higher interest rate (or such higher spread or
spread multiplier, if applicable) to the Holder of such Guaranteed Security.
Such notice shall be irrevocable. All Guaranteed Securities with respect to
which the interest rate (or the spread or spread multiplier used to calculate
such interest rate, if applicable) is reset on an Optional Reset Date, and with
respect to which the Holders of such Guaranteed Securities have not tendered
such Guaranteed Securities for repayment (or have validly revoked any such
tender) pursuant to the next succeeding paragraph, will bear such higher
interest rate (or such higher spread or spread multiplier, if applicable).
The Holder of any such Guaranteed Security will have the option to
elect repayment by the Issuer of the principal of such Guaranteed Security on
each Optional Reset Date at a price equal to the principal amount thereof plus
interest accrued to such Optional Reset Date. In order to obtain repayment on an
Optional Reset Date, the Holder must follow the procedures set forth in Article
Fourteen for repayment at the option of Holders except that the period for
delivery or notification to the Trustee shall be at least 25 but not more than
35 days prior to such Optional Reset Date and except that, if the Holder has
tendered any Guaranteed Security for repayment pursuant to the Reset Notice, the
Holder may, by written notice to the Trustee, revoke such tender or repayment
until the close of business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and Section 305,
each Guaranteed Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Guaranteed Security shall
carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Guaranteed Security.
Section 308. Optional Extension of Maturity. The provisions of this
Section 308 may be made applicable to any series of Guaranteed Securities
pursuant to Section 301 (with such modifications, additions or substitutions as
may be specified pursuant to such Section 301). The Stated Maturity of any
Guaranteed Security of such series may be extended at the option of the Issuer
for the period or periods specified on the face of such Guaranteed Security
(each an "Extension Period") up to but not beyond the date (the "Final
Maturity") set forth on the face of such Guaranteed Security. The Issuer may
exercise such option with respect to any Guaranteed Security by notifying the
Trustee of such exercise at least 50 but not more than 60 days prior to the
Stated Maturity of such Guaranteed Security in effect prior to the exercise of
such option (the "Original Stated Maturity"). If the Issuer exercises such
option, the Trustee shall transmit, in the manner provided for in Section 106,
to the Holder of such Guaranteed Security not later than 40 days prior to the
Original Stated Maturity a notice (the "Extension Notice") indicating (i) the
election of the Issuer to extend the Maturity, (ii) the new Stated Maturity,
(iii) the interest rate
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applicable to the Extension Period and (iv) the provisions, if any, for
redemption during such Extension Period. Upon the Trustee's transmittal of the
Extension Notice, the Stated Maturity of such Guaranteed Security shall be
extended automatically and, except as modified by the Extension Notice and as
described in the next paragraph, such Guaranteed Security will have the same
terms as prior to the transmittal of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days before the
Original Stated Maturity of such Guaranteed Security, the Issuer may, at its
option, revoke the interest rate provided for in the Extension Notice and
establish a higher interest rate for the Extension Period by causing the Trustee
to transmit, in the manner provided for in Section 106, notice of such higher
interest rate to the Holder of such Guaranteed Security. Such notice shall be
irrevocable. All Guaranteed Securities with respect to which the Stated Maturity
is extended will bear such higher interest rate.
If the Issuer extends the Maturity of any Guaranteed Security, the
Holder will have the option to elect repayment of such Guaranteed Security by
the Issuer on the Original Stated Maturity at a price equal to the principal
amount thereof, plus interest accrued to such date. In order to obtain repayment
on the Original Stated Maturity once the Issuer has extended the Maturity
thereof, the Holder must follow the procedures set forth in Article Fourteen for
repayment at the option of Holders, except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior
to the Original Stated Maturity and except that, if the Holder has tendered any
Guaranteed Security for repayment pursuant to an Extension Notice, the Holder
may, by written notice to the Trustee, revoke such tender for repayment until
the close of business on the tenth day before the Original Stated Maturity.
Section 309. Persons Deemed Owners. Prior to due presentment of a
Guaranteed Security for registration of transfer, the Issuer, each Guarantor,
the Trustee and any agent of the Issuer, each Guarantor or the Trustee may treat
the Person in whose name such Guaranteed Security is registered as the owner of
such Guaranteed Security for the purpose of receiving payment of principal of
and any premium and (subject to Section 307) any interest on such Guaranteed
Security and for all other purposes whatsoever, whether or not such Guaranteed
Security be overdue, and none of the Issuer, the Guarantors, the Trustee or any
agent of the Issuer, a Guarantor or the Trustee shall be affected by notice to
the contrary.
Section 310. Cancellation. All Guaranteed Securities surrendered for
payment, redemption, registration of transfer or exchange or for credit against
any sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The
Issuer may at any time deliver to the Trustee for cancellation any Guaranteed
Securities previously authenticated and delivered hereunder which the Issuer 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 Guaranteed
Securities previously authenticated hereunder which the Issuer has not issued
and sold, and all Guaranteed Securities so delivered shall be promptly cancelled
by the Trustee. No Guaranteed Securities shall be authenticated in lieu of or in
exchange for any Guaranteed Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Guaranteed
Securities held by the Trustee shall be disposed of by the Trustee in its
customary manner, and the Trustee shall furnish the Issuer a certificate with
respect to such disposition.
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Section 311. Computation of Interest. Except as otherwise specified as
contemplated by Section 301 for Guaranteed Securities of any series, interest on
the Guaranteed Securities of each series shall be computed on the basis of a
360-day year of twelve 30-day months and interest on the Guaranteed Securities
of each series for any partial period shall be computed on the basis of a
360-day year of twelve 30-day months and the number of days elapsed in any
partial month.
Section 312. CUSIP Numbers. The Issuer in issuing the Guaranteed
Securities may use "CUSIP" numbers (if then generally in use), and, if so, the
Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Guaranteed
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 Guaranteed
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Issuer shall promptly notify the Trustee in
writing of any change in "CUSIP" numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture. This Indenture
shall upon Issuer Request cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Guaranteed
Securities herein expressly provided for), and the Trustee, on demand and at the
expense of the Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Guaranteed Securities theretofore authenticated and
delivered (other than (i) Guaranteed Securities which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306 and (ii) Guaranteed Securities for whose
payment money has theretofore been deposited in trust or segregated and
held in trust by the Issuer and thereafter repaid to the Issuer or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all such Guaranteed Securities not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year of the date of deposit,
(iii) 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
Issuer, or
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(iv) are deemed paid and discharged pursuant to Article
Fifteen, as applicable, and the Issuer, in the case of (i), (ii) or
(iii) above, has deposited or caused to be deposited with the Trustee
as trust funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Guaranteed 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 Guaranteed Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the Issuer has paid or caused to be paid all other sums
payable hereunder by the Issuer; and
(3) the Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuer and each of the Guarantors to the Trustee under
Section 607, the obligations of the Issuer and each of the Guarantors to any
Authenticating Agent under Section 614 and, if money shall have been deposited
with the Trustee pursuant to subclause (B) of Clause (1) of this Section, or if
money or obligations shall have been deposited with or received by the Trustee
pursuant to Article Fifteen, the obligations of the Trustee under Section 402
and the last paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money; Indemnification. (a) Subject
to provisions of the last paragraph of Section 1003, all money deposited with
the Trustee pursuant to Section 401, all money and U.S. Government Obligations
or Foreign Government Securities deposited with the Trustee pursuant to Article
Fifteen and all money received by the Trustee in respect of U.S. Government
Obligations or Foreign Government Securities deposited with the Trustee pursuant
to Article Fifteen, shall be held in trust and applied by it, in accordance with
the provisions of the Guaranteed Securities and this Indenture, to the payment,
either directly or through any Paying Agent (including the Issuer or either
Guarantor 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 or to make
mandatory sinking fund payments or analogous payments as contemplated by Article
Fifteen.
(b) The Issuer and each of the Guarantors shall pay and shall indemnify
the Trustee against any tax, fee or other charge imposed on or assessed against
U.S. Government Obligations or Foreign Government Securities deposited pursuant
to Article Fifteen, or the interest and principal received in respect of such
obligations, other than any payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Issuer from time to time
upon Issuer Request any U.S. Government Obligations or Foreign Government
Securities or money held by it as provided in Article Fifteen which, in the
opinion of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered to the
Trustee, are then in excess of the amount thereof which then would have been
required to be deposited for
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the purpose for which such Obligations or Foreign Government Securities or money
were deposited or received. This provision shall not authorize the sale by the
Trustee of any U.S. Government Obligations or Foreign Government Securities held
under this Indenture.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default. "Event of Default", wherever used
herein with respect to Guaranteed Securities of any series, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(1) default in the payment of any interest upon any Guaranteed
Security of that series when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of or any premium
or interest on any Guaranteed Security of that series at its Maturity;
or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Guaranteed Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Issuer or either Guarantor in this Indenture (other
than a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with or which
has expressly been included in this Indenture solely for the benefit of
any series of Guaranteed Securities other than that series), and
continuance of such default or breach for a period of 45 days after
there has been given, by registered or certified mail, to the Issuer
and the Guarantors by the Trustee or to the Issuer, the Guarantors and
the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Guaranteed Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(5) a default under any bond, debenture, note or other
evidence of the Indebtedness of the Issuer or either Guarantor
(including a default with respect to Guaranteed Securities of any
series other than that series) or under any mortgage, indenture or
instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness of the Issuer or either Guarantor
(including this Indenture), whether such Indebtedness now exists or
shall hereafter be created, which default shall constitute a failure to
pay such Indebtedness in a principal amount in excess of $15 million
when due and payable at final maturity, after the expiration of any
applicable grace period with respect thereto or shall have resulted in
such Indebtedness in a principal amount in excess of $15 million
becoming or being declared due and payable prior to the date on which
it would otherwise have become due and payable, without such
Indebtedness having been discharged, or such acceleration having been
rescinded or annulled, within a period of 15 days after there shall
have been given, by overnight mail
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or other same day or overnight delivery service which can provide
evidence of delivery, to the Issuer and the Guarantors by the Trustee
or to the Issuer, the Guarantors and the Trustee by the Holders of at
least 25% in aggregate principal amount of the Outstanding Guaranteed
Securities of that series a written notice specifying such default and
requiring the Issuer to cause such Indebtedness to be discharged or
cause such acceleration to be rescinded or annulled and stating that
such notice is a "Notice of Default" hereunder; or
(6) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Issuer or a
Guarantor 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 Issuer or a
Guarantor a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition
of or in respect of the Issuer or a Guarantor under any applicable
Federal or State law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Issuer
or a Guarantor or of any substantial part of its property, or ordering
the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive days; or
(7) the commencement by the Issuer or a Guarantor 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 Issuer or such Guarantor in an involuntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement
of any bankruptcy or insolvency case or proceeding against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under any applicable Federal or State law, or the consent by
it to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Issuer or such Guarantor
or of any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due,
or the taking of corporate action by the Issuer or a Guarantor in
furtherance of any such action; or
(8) any other Event of Default provided with respect to
Guaranteed Securities of that series.
Upon receipt by the Trustee of any Notice of Default pursuant to this
Section 501 with respect to Guaranteed Securities of a series all or part of
which is represented by a Global Security, the Trustee shall establish a record
date for determining Holders of Outstanding Guaranteed Securities of such series
entitled to join in such Notice of Default, which record date shall be at the
close of business on the day the Trustee receives such Notice of Default. The
Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such Notice of Default, whether or not
such Holders remain Holders after such record date; provided, that unless
Holders of at least 25% in principal amount of the Outstanding
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Guaranteed Securities of such series, or their proxies, shall have joined in
such Notice of Default prior to the applicable Expiration Date, such Notice of
Default shall automatically and without further action by any Holder be
cancelled and of no further effect. Nothing in this paragraph shall prevent a
Holder, or a proxy of a Holder, from giving, after expiration of such applicable
Expiration Date, a new Notice of Default identical to a Notice of Default which
has been cancelled pursuant to the proviso to the preceding sentence, in which
event a new record date shall be established pursuant to the provisions of this
Section 501.
Section 502. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default with respect to Guaranteed Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Guaranteed
Securities of that series may declare the principal amount (or, if any of the
Guaranteed Securities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Guaranteed Securities as may be
specified in the terms thereof) of all of the Guaranteed Securities of that
series to be due and payable immediately, by a notice in writing to the Issuer
and the Guarantors (and to the Trustee if given by Holders), and upon any such
declaration such principal amount (or specified amount) shall become immediately
due and payable. If (a) an Event of Default specified in Section 501(4) or
another Event of Default under Section 501(8) which is common to all Outstanding
series of Guaranteed Securities occurs and is continuing or (b) an Event of
Default specified in Section 501(6) or 501(7) occurs and is continuing, then in
every such case, the Trustee or the Holders of not less than 25% in aggregate
principal amount of all the Guaranteed Securities then Outstanding hereunder
(treated as one class), by a notice in writing to the Issuer and the Guarantors
(and to the Trustee if given by Holders) may declare the principal amount (or,
if any Guaranteed Securities are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms thereof) of all
the Guaranteed Securities then Outstanding to be due and payable immediately,
and upon any such declaration such principal amount (or specified amount) shall
become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Guaranteed Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, subject to Section 508, the Holders of a
majority in principal amount of the Outstanding Guaranteed Securities of that
series, by written notice to the Issuer, the Guarantors and the Trustee, may
rescind and annul such declaration and its consequences if
(1) the Issuer or either Guarantor has paid or deposited with
the Trustee a sum sufficient to pay
(A) all overdue interest on all Guaranteed Securities of that
series,
(B) the principal of or premium on any Guaranteed 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 Guaranteed 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 Guaranteed Securities, and
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(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, and actual expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Guaranteed
Securities of that series, other than the non-payment of the principal
of Guaranteed Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived as provided
in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Trustee of any declaration of acceleration, or
rescission and annulment thereof, with respect to Guaranteed Securities of a
series all or part of which is represented by a Global Security, the Trustee
shall establish a record date for determining Holders of Outstanding Guaranteed
Securities of such series entitled to join in such declaration of acceleration,
or rescission and annulment, as the case may be, which record date shall be at
the close of business on the day the Trustee receives such declaration of
acceleration, or rescission and annulment, as the case may be. The Holders on
such record date, or their duly designated proxies, and only such Persons, shall
be entitled to join in such declaration of acceleration, or rescission and
annulment, as the case may be, whether or not such Holders remain Holders after
such record date; provided, that unless such declaration of acceleration, or
rescission and annulment, as the case may be, shall have become effective by
virtue of the requisite percentage having been obtained prior to the applicable
Expiration Date, such declaration of acceleration, or rescission and annulment,
as the case may be, shall automatically and without further action by any Holder
be cancelled and of no further effect. Nothing in this paragraph shall prevent a
Holder, or a proxy of a Holder, from giving, after expiration of such applicable
Expiration Date, a new declaration of acceleration, or rescission or annulment
thereof, as the case may be, that is identical to a declaration of acceleration,
or rescission or annulment thereof, which has been cancelled pursuant to the
proviso to the preceding sentence, in which event a new record date shall be
established pursuant to the provisions of this Section 502.
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Issuer and each of the Guarantors, jointly and severally, covenant
and agree that if
(i) default is made in the payment of any interest on any
Guaranteed Security when such interest becomes due and payable and such
default continues for a period of 30 days, or
(ii) default is made in the payment of the principal of or any
premium on any Guaranteed Security at the Maturity thereof,
then the Issuer or a Guarantor will, upon demand of the Trustee, pay to it, for
the benefit of the Holders of such Guaranteed Securities, the whole amount then
due and payable on such Guaranteed Securities for principal and any premium and
interest and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal and premium and on any overdue
interest, at the rate or rates prescribed therefor in such Guaranteed
Securities,
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and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
actual expenses, disbursements and advances of the Trustee, its agents and
counsel.
If the Issuer or either Guarantor fails to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of the sums so due
and unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Issuer or either Guarantor or any other obligor
upon such Guaranteed Securities and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Issuer or
either Guarantor or any other obligor upon such Guaranteed Securities, wherever
situated.
If an Event of Default with respect to Guaranteed 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 Guaranteed
Securities of such series by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement 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.
Section 504. Trustee May File Proofs of Claim. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Issuer, either Guarantor or any other obligor upon the Guaranteed Securities
or the property of the Issuer, a Guarantor or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Guaranteed
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Issuer or a Guarantor for the payment of overdue principal or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of
principal of or any premium or interest owing and unpaid in respect of
the Guaranteed Securities and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, and
actual expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the Holders allowed in such judicial proceeding,
and
(ii) to collect and receive any moneys 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 shall consent 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, its agents and counsel, and any other
amounts due the Trustee under Section 607.
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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 Guaranteed
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of
Guaranteed Securities. All rights of action and claims under this Indenture or
the Guaranteed Securities may be prosecuted and enforced by the Trustee without
the possession of any of the Guaranteed Securities or the production thereof in
any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Guaranteed
Securities in respect of which such judgment has been recovered.
Section 506. Application of Money Collected. Any money or property
collected or to be applied by the Trustee with respect to a series of Guaranteed
Securities pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal or any premium or interest, upon presentation of
the Guaranteed Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Guaranteed 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 Guaranteed Securities
for principal and any premium and interest, respectively; and
THIRD: To the payment of the remainder, if any, to the Issuer,
the Guarantors or any other Person or Persons entitled thereto.
Section 507. Limitation on Suits. No Holder of any Guaranteed Security
of any series shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a receiver,
assignee, trustee, liquidator or sequestrator (or other similar official) or for
any other remedy hereunder, unless, subject to Section 508,
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Guaranteed
Securities of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Guaranteed 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;
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(3) such Holder or Holders have offered to the Trustee
security or indemnity satisfactory to the Trustee in its reasonable
judgment against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Guaranteed Securities
of that series,
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture 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 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest. Notwithstanding any other provision in this Indenture, the
Holder of any Guaranteed Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and any premium and
(subject to Section 307) any interest on such Guaranteed Security on the Stated
Maturity or Maturities expressed in such Guaranteed Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
Section 509. 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 Issuer,
the Guarantors, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 510. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Guaranteed Securities in the last paragraph of Section 306, 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 shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Guaranteed Securities to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to
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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 512. Control by Holders. The Holders of not less than a
majority in principal amount of the Outstanding Guaranteed Securities of any
series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee, with respect to the Guaranteed Securities of
such series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture;
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(3) subject to the provisions of Section 601, the Trustee
shall have the right to decline to follow such direction if a
Responsible Officer or Officers of the Trustee shall, in good faith,
determine that the proceeding so directed is contrary to applicable law
or this Indenture or may be unduly prejudicial to the Holders of
Outstanding Guaranteed Securities not joining in such direction.
Upon receipt by the Trustee of any such direction with respect to
Guaranteed Securities of a series all or part of which is represented by a
Global Security, the Trustee shall establish a record date for determining
Holders of Outstanding Guaranteed Securities of such series entitled to join in
such direction, which record date shall be at the close of business on the day
the Trustee receives such direction. The Holders on such record date, or their
duly designated proxies, and only such Persons, shall be entitled to join in
such direction, whether or not such Holders remain Holders after such record
date; provided, that unless such majority in principal amount shall have been
obtained prior to the applicable Expiration Date, such direction shall
automatically and without further action by any Holder be cancelled and of no
further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of
a Holder, from giving, after expiration of such applicable Expiration Date, a
new direction identical to a direction which has been cancelled pursuant to the
provisions to the preceding sentence, in which event a new record date shall be
established pursuant to the provisions of this Section 512.
Section 513. Waiver of Past Defaults. The Holders of not less than a
majority in principal amount of the Outstanding Guaranteed Securities of any
series may on behalf of the Holders of all the Guaranteed Securities of such
series waive any past default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of or any premium or
interest on any Guaranteed Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Guaranteed Security of such series affected.
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Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
The Issuer or a Guarantor, as the case may be, may, but shall not be
obligated to, fix a record date for the purpose of determining the Persons
entitled to waive any past default hereunder. If a record date is fixed, the
Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to waive any default hereunder, whether or not such
Holders remain Holders after such record date; provided, that unless such
majority in principal amount shall have been obtained prior to the date which is
90 days after such record date, any such waiver previously given shall
automatically and without further action by any Holder be cancelled and of no
further effect.
Section 514. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Guaranteed Security by this acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees and expenses, against any
party litigant in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Issuer or a Guarantor, to
any suit instituted by the Trustee, to any suit instituted by any Holder or
group of Holders, holding in the aggregate more than 10% in principal amount of
the Outstanding Guaranteed Securities of any series, or to any suit instituted
by any Holder for the enforcement of the payment of the principal of or any
premium or interest on any Guaranteed Security on or after the Stated Maturity
or Maturities expressed in such Guaranteed Security (or, in the case of
redemption, on or after the Redemption Date).
Section 515. Waiver Stay or Extension Laws. Each of the Issuer and the
Guarantors covenant (to the extent that it may lawfully do so) that it will not
at any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and each of the Issuer and the Guarantors (to the extent that
it may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities. (a) Except during the
continuance of an Event of Default,
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(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this
Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Guaranteed Securities of any series, determined as provided
in Section 512, relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture
with respect to the Guaranteed Securities of such series; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
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(e) The duties and responsibilities of the Trustee otherwise shall be
as provided by the Trust Indenture Act.
Section 602. Notice of Defaults. Within 90 days after the occurrence of
any default hereunder with respect to the Guaranteed Securities of any series,
the Trustee shall transmit by mail to all Holders of Guaranteed Securities of
such series, as their names and addresses appear in the Security Register,
notice of such default hereunder actually known to a Responsible Officer of the
Trustee, unless such default shall have been cured or waived; provided, however,
that, except in the case of a default in the payment of the principal of or any
premium or interest on any Guaranteed Security of such series or in the payment
of any sinking fund installment with respect to Guaranteed Securities of such
series, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of
directors or Responsible Officers of the Trustee in good faith determine that
the withholding of such notice is in the interest of the Holders of Guaranteed
Securities of such series; and provided, further, that in the case of any
default of the character specified in Section 501(4) or (5) with respect to
Guaranteed Securities of such series, no such notice to Holders shall be given
until at least 45 days and 15 days, respectively, after the occurrence thereof.
For the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Guaranteed Securities of such series.
Section 603. Certain Rights of Trustee. Subject to the provisions of
Section 601:
(a) the Trustee may conclusively rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Issuer or a Guarantor mentioned
herein shall be sufficiently evidenced by an Issuer Request or Issuer Order or a
Guarantor Request or a Guarantor Order, as applicable, and any resolution of the
Board of Directors may be sufficiently evidenced by a Board Resolution; (c)
whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity satisfactory to the Trustee in its
reasonable judgment against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
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(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Issuer and the Guarantors, personally or by
agent or attorney;
(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 shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(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; and
(i) the Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Guaranteed Securities and this Indenture.
Section 604. Not Responsible for Recitals or Issuance of Guaranteed
Securities. The recitals contained herein and in the Guaranteed Securities,
except the Trustee's certificates of authentication, shall be taken as the
statements of the Issuer and each Guarantor, and the Trustee or any
Authenticating Agent assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Guaranteed Securities of any series or of the Guarantees.
The Trustee or any Authenticating Agent shall not be accountable for the use or
application by the Issuer of Guaranteed Securities or the proceeds thereof.
Section 605. May Hold Guaranteed Securities. The Trustee, any
Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Issuer or a Guarantor, in its individual or any other capacity, may
become the owner or pledgee of Guaranteed Securities and, subject to Sections
608 and 613, may otherwise deal with the Issuer or a Guarantor with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
Section 606. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Issuer
or a Guarantor.
Section 607. Compensation and Reimbursement. The Issuer, and each of
the Guarantors, jointly and severally, agree
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(1) to pay to the Trustee from time to time such compensation
as shall be agreed in writing between the Issuer or a Guarantor, as the
case may be, and the Trustee for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify each of the Trustee, or any predecessor
Trustee, for, and to hold it harmless against, any and all loss,
liability, damage, claim or expense, including taxes (other than taxes
based on the income of the Trustee) 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 (whether asserted by
the Issuer, a Guarantor, any Holder or any other Person) or liability
in connection with the exercise or performance of any of its powers or
duties hereunder.
The Trustee shall have a lien prior to the Guaranteed Securities and
the Guarantees as to all property and funds held by it hereunder for any amount
owing it or any predecessor Trustee pursuant to this Section 607, except with
respect to funds held in trust for the benefit of the Holders of particular
Guaranteed Securities.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 501(6) or Section 501(7), the expenses
(including the reasonable fees and expenses of its counsel) and the compensation
for the services are intended to constitute expenses of administration under any
applicable Federal or State bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
Section 608. Disqualification; Conflicting Interests. If the Trustee
has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall 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 609. Corporate Trustee Required; Eligibility. There shall at
all times be a Trustee hereunder which shall 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 $50,000,000. If such Person 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, 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
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eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
Section 610. Resignation and Removal; Appointment of Successor. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Guaranteed
Securities of one or more series by giving written notice thereof to the Issuer
and the Guarantors. If the instrument of acceptance by a successor Trustee
required by Section 611 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition, at the expense of the Trustee, any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Guaranteed Securities
of such series.
(c) The Trustee may be removed at any time with respect to the
Guaranteed Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Guaranteed Securities of such series,
delivered to the Trustee, the Issuer and the Guarantors. If the instrument of
acceptance by a successor Trustee required by Section 611 shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
removal, the Trustee being removed may petition, at the expense of the Issuer,
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Guaranteed Securities of such series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Issuer, a Guarantor or by any Holder
who has been a bona fide Holder of a Guaranteed Security for at least
six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Issuer,
a Guarantor or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Issuer or a Guarantor, as the case may be, by a
Board Resolution may remove the Trustee with respect to all Guaranteed
Securities, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Guaranteed 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 Guaranteed
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Guaranteed Securities of one or more series, the Issuer, by a
Board Resolution, shall promptly appoint a successor Trustee
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or Trustees with respect to the Guaranteed Securities of that or those series
(it being understood that any such successor Trustee may be appointed with
respect to the Guaranteed Securities of one or more or all of such series and
that at any time there shall be only one Trustee with respect to the Guaranteed
Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Guaranteed Securities of any Series shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding Guaranteed
Securities of such series delivered to the Issuer and the Guarantors and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements of
Section 611, become the successor Trustee with respect to the Guaranteed
Securities of such series and to that extent supersede the successor Trustee
appointed by the Issuer. If no successor Trustee with respect to the Guaranteed
Securities of any Series shall have been so appointed by the Issuer or the
Holders and accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Guaranteed Security of such series
for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Guaranteed Securities of such series.
(f) The Issuer shall give notice of each resignation and each removal
of the Trustee with respect to the Guaranteed Securities of any series and each
appointment of a successor Trustee with respect to the Guaranteed Securities of
any series to all Holders of Guaranteed Securities of such series in the manner
provided in Section 106. Each notice shall include the name of the successor
Trustee with respect to the Guaranteed Securities of such series and the address
of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor. (a) In case of the
appointment hereunder of a successor Trustee with respect to all Guaranteed
Securities, every such successor Trustee so appointed shall execute, acknowledge
and deliver to the Issuer, the Guarantors and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Issuer or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Guaranteed Securities of one or more (but not all) series, the
Issuer, each of the Guarantors, the retiring Trustee and each successor Trustee
with respect to the Guaranteed Securities of one or more series shall execute
and deliver an indenture supplemental hereto wherein each successor Trustee
shall accept such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Guaranteed Securities of that or those series to
which the appointment of such successor Trustee relates, (2) if the retiring
Trustee is not retiring with respect to all Guaranteed Securities, shall contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts
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and duties of the retiring Trustee with respect to the Guaranteed Securities of
that or those series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (3) shall add to or change
any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Guaranteed Securities of that or
those series to which the appointment of such successor Trustee relates; but, on
request of the Issuer or any successor Trustee, such retiring Trustee shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder with respect to the Guaranteed
Securities of that or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the Issuer and each of
the Guarantors shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in paragraph (a) and (b) of this Section, as the
case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Guaranteed 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 Guaranteed Securities so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Guaranteed Securities.
Section 613. Preferential Collection of Claims Against the Issuer or
the Guarantors. If and when the Trustee shall be or become a creditor of the
Issuer or either Guarantor (or any other obligor upon the Guaranteed
Securities), the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of claims against the Issuer or a
Guarantor (or any such other obligor).
Section 614. Appointment of Authenticating Agent. The Trustee may
appoint an Authenticating Agent or Agents with respect to one or more series of
Guaranteed Securities which shall be authorized to act on behalf of the Trustee
to authenticate Guaranteed Securities of such series issued upon original issue
and upon exchange, registration of transfer or partial
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redemption thereof or pursuant to Section 306, and Guaranteed Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Guaranteed Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Issuer 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, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee, the Issuer and the Guarantors. 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 Issuer and the Guarantors. Upon
receiving such a notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Issuer and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders of Guaranteed Securities of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Issuer, and each of the Guarantors jointly and severally, agree to
pay to each Authenticating Agent from time to time reasonable compensation for
its services under this Section.
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If an appointment with respect to one or more series is made pursuant
to this Section, the Guaranteed Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Guaranteed Securities of the series designated
therein referred to in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK,
As Trustee
By ,
----------------------------------------
As Authenticating Agent
By ,
----------------------------------------
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER
Section 701. Issuer to Furnish Trustee Names and Addresses of Holders.
The Issuer will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than the last day of _________and ________
in each year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of the preceding __________ or
___________, as the case may be, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Issuer of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 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 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Guaranteed Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided in the
Trust Indenture Act.
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Every Holder of Guaranteed Securities, by receiving and holding the
same, agrees with the Issuer, each of the Guarantors and the Trustee that none
of the Issuer, the Guarantors or the Trustee or any agent of either of them
shall be held accountable by reason of any disclosure of information as to names
and addresses of Holders made that is required by the Trust Indenture Act.
(b) If three or more Holders (herein referred to as "applicants") apply
in writing to the Trustee, and furnish to the Trustee reasonable proof that each
such applicant has owned a Guaranteed Security for a period of at least six
months preceding the date of such application, and such application states that
the applicants desire to communicate with other Holders with respect to their
rights under this Indenture or under the Guaranteed Securities and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five business
days after the receipt of such application, at its election, either
(i) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of
Holders whose names and addresses appear in the information preserved
at the time by the Trustee in accordance with Section 702(a), and as to
the approximate cost of mailing to such Holders the form of proxy or
other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder whose name and address appear in the information preserved
at the time by the Trustee in accordance with Section 702(a) a copy of the form
of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be mailed
and of payment, or provision for the payment, of the reasonable expenses of
mailing, unless within five days after such tender the Trustee shall mail to
such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interest of the Holders
or would be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed, shall enter an
order refusing to sustain any of such objections or if, after the entry of an
order sustaining one or more of such objections, the Commission shall find,
after notice and opportunity for hearing, that all the objections so sustained
have been met and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Holders with reasonable promptness after the
entry of such order and the renewal of such tender; otherwise the Trustee shall
be relieved of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of Guaranteed Securities, by receiving and holding the
same, agrees with the Issuer, each of the Guarantors and the Trustee that none
of the Issuer, the Guarantors, the Trustee or any agent of either of them shall
be held accountable by reason of the disclosure of any such information as to
the names and addresses of the Holders in accordance with Section 702(b),
regardless of the source from which such information was derived, and that the
Trustee
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shall not be held accountable by reason of mailing any material pursuant to a
request made under Section 702(b).
Section 703. Reports by Trustee. (a) The Trustee shall 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 same time and in
the same manner provided pursuant thereto. If required by Section 313(a) of the
Trust Indenture Act, the Trustee shall, within sixty days after each September
15 following the date of the first issuance, deliver to Holders a brief report,
dated as of such September 15, which complies with the provisions of such
Section 313(a).
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Guaranteed Securities are listed, with the Commission, the Issuer and each of
the Guarantors. The Issuer and each of the Guarantors will promptly notify the
Trustee when any Guaranteed Securities are listed on any stock exchange and of
any delisting thereof.
Section 704. Reports by Issuer and Guarantors. Each of the Issuer and
Guarantors shall:
(1) file with the Trustee, within 15 days after the Issuer or
such Guarantor is required to file the same with the Commission, copies
of the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe)
which the Issuer or such Guarantor may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended; or, if none of the Issuer or the
Guarantors are required to file information, documents or reports
pursuant to either of said Sections, then it shall file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may
be required pursuant to Section 13 of the Securities Exchange Act of
1934, as amended, in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Issuer and each of the Guarantors with the
conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(3) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Issuer or either
Guarantor pursuant to paragraphs (1) and (2) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission.
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
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information contained therein or determinable from information contained
therein, including the Issuer's or either Guarantor's compliance with any of its
covenants hereunder (as to which the Trustee is entitled to rely exclusively on
Officers' Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Issuer and Guarantors May Consolidate, Etc., Only on
Certain Terms. None of the Issuer or the Guarantors shall consolidate with or
merge into any other Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person unless:
(1) in case the Issuer or a Guarantor shall consolidate with
or merge into another Person or convey, transfer or lease its
properties and assets substantially as an entirety to any Person, the
Person formed by such consolidation or into which the Issuer or such
Guarantor is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Issuer or a
Guarantor substantially as an entirety shall be a corporation,
partnership or trust, shall be organized and validly existing under the
laws of the United States of America, any State thereof or the District
of Columbia or under the laws of Canada or any Province or Territory
thereof and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, the due and punctual payment of the principal of and any
premium and interest on all the Guaranteed Securities and the
performance or observance of every covenant of this Indenture on the
part of the Issuer or the relevant Guarantor to be performed or
observed;
(2) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Issuer or
a Guarantor or a Subsidiary as a result of such transaction as having
been incurred by the Issuer or such Guarantor or such Subsidiary at the
time of such transaction, no Event of Default, and no event which,
after notice or lapse of time or both, would become an Event of
Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or
such conveyance, transfer or lease, properties or assets of the Issuer
or a Guarantor would become subject to a mortgage, pledge, lien,
security interest or other encumbrance which would not be permitted by
this Indenture, the Issuer, such Guarantor or such successor Person, as
the case may be, shall take such steps as shall be necessary
effectively to secure the Guaranteed Securities equally and ratably
with (or prior to) all indebtedness secured thereby; and
(4) the Issuer or such Guarantor has delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
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Section 802. Successor Substituted. Upon any consolidation of the
Issuer or a Guarantor with, or merger of the Issuer or a Guarantor into, any
other Person or any conveyance, transfer or lease of the properties and assets
of the Issuer or a Guarantor substantially as an entirety in accordance with
Section 801, the successor Person formed by such consolidation or into which the
Issuer or such Guarantor is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Issuer or such Guarantor under this Indenture with the
same effect as if such successor Person had been named as the Issuer or such
Guarantor herein, and thereafter, except in the case of any such conveyance,
transfer or lease, the predecessor Person shall be relieved of all obligations
and covenants under this Indenture and the Guaranteed Securities.
Such successor Person may cause to be signed, and may issue either in
its own name or in the name of the Issuer or a Guarantor, any or all of the
Guaranteed Securities issuable hereunder which theretofore shall not have been
signed by the Issuer or such Guarantor and delivered to the Trustee; and, upon
the order of such successor Person instead of the Issuer or such Guarantor, as
the case may be, and subject to all the terms, conditions and limitations in
this Indenture prescribed, the Trustee shall authenticate and shall deliver any
Guaranteed Securities which previously shall have been signed and delivered by
the officers of the Issuer or such Guarantor to the Trustee for authentication
pursuant to such provisions and any Guaranteed Securities which such successor
Person thereafter shall cause to be signed and delivered to the Trustee on its
behalf for the purpose pursuant to such provisions. All the Guaranteed
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Guaranteed Securities theretofore or thereafter
issued in accordance with the terms of this Indenture as though all of such
Guaranteed Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance or lease,
such changes in phraseology and form may be made in the Guaranteed Securities
thereafter to be issued as may be appropriate.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Issuer and each of the Guarantors, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Issuer
or a Guarantor, or successive successions, and the assumption by any
such successor of the covenants, agreements and obligations of the
Issuer or a Guarantor herein and in the Guaranteed Securities; or
(2) to add to the covenants of the Issuer or a Guarantor for
the benefit of the Holders of all or any series of Guaranteed
Securities (and if such covenants are to be for the benefit of less
than all series of Guaranteed Securities, stating that such covenants
are
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expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Issuer or a
Guarantor; or
(3) to add any additional Events of Default for the benefit of
the Holders of all or any series of Guaranteed Securities (and if such
additional Events of Default are to be for the benefit of less than all
series of Guaranteed Securities, stating that such additional Events of
Default are expressly being included solely for the benefit of such
series), provided, however, that in respect of any such additional
Events of Default such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter
or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such default or may limit the
remedies available to the Trustee upon such default or may limit the
right of the Holders of a majority in aggregate principal amount of
that or those series of Guaranteed Securities to which such additional
Events of Default apply to waive such default; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Guaranteed 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 Guaranteed Securities in
uncertificated form; or
(5) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Guaranteed
Securities, provided that if such action adversely affects the
interests of any Holders of Guaranteed Securities of any series, any
such addition, change or elimination (i) shall neither (A) apply to any
Guaranteed 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
Guaranteed Security with respect to such provision or (ii) shall become
effective only when there is no such Guaranteed Security Outstanding;
or
(6) to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee or to surrender any right or power
herein conferred upon the Issuer or a Guarantor; or
(7) to secure the Guaranteed Securities pursuant to the
requirements of Section 1008 or otherwise; or
(8) to establish the form or terms of Guaranteed Securities of
any series as permitted by Sections 201 and 301; or
(9) to provide for uncertificated securities in addition to
certificated securities; or
(10) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Guaranteed
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide
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for or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 611(b); or
(11) to cure any ambiguity, to correct any defect or
supplement any provision herein which may be inconsistent with any
other provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture, provided that such
action pursuant to this clause (11) shall not adversely affect the
interests of the Holders of Guaranteed Securities of any series; or
(12) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
Defeasance and discharge of any series of Guaranteed Securities
pursuant to Sections 401, 1502 and 1503; provided that any such action
shall not adversely affect the interests of the holders of Guaranteed
Securities of such series or any other series of Guaranteed Securities;
or
(13) to comply with the rules or regulations of any securities
exchange or automated quotation system on which any of the Guaranteed
Securities may be listed or traded; or
(14) to add to, change or eliminate any of the provisions of
this Indenture as shall be necessary or desirable in accordance with
any amendments to the Trust Indenture Act, provided that such action
does not adversely affect the rights or interests of any Holder of
Guaranteed Securities.
Section 902. Supplemental Indentures with Consent of Holders. With the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Guaranteed Securities of each series affected by such supplemental
indenture treated as one class, by Act of said Holders delivered to the Issuer
and each of the Guarantors and the Trustee, the Issuer and the Guarantors, 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 Guaranteed Securities of
such series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding
Guaranteed Security affected thereby,
(1) except to the extent permitted by Section 307(b) or
Section 308 or otherwise specified in the form or terms of the
Guaranteed Securities of any series as permitted by Sections 201 and
301 with respect to extending the Stated Maturity of any Guaranteed
Security of such series, change the Stated Maturity of the principal
of, or any installment of principal of or interest on, any Guaranteed
Security of any series, 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 be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or change
any Place of Payment where, or the coin or currency in which, any
Guaranteed Security or any premium or interest thereon is payable, or
impair the right to institute suit for the enforcement of any such
payment on
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or after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Guaranteed Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or the consent
of whose Holders is required for any amendment or waiver (of compliance
with certain provisions of this Indenture or certain defaults hereunder
and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513
or Section 1011, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Guaranteed
Security affected thereby, provided, however, that this clause shall
not be deemed to require the consent of any Holder with respect to
changes in the references to "the Trustee" and concomitant changes in
this Section and Section 1011, or the deletion of this proviso, in
accordance with the requirements of Sections 611 and 901; or
(4) if the Guaranteed Securities of any series are convertible
or exchangeable into any other securities or property of the Issuer,
make any change that adversely affects the right to convert or exchange
any Guaranteed Security of such series (except as permitted by Section
901) or decrease the conversion or exchange rate or increase the
conversion price of any such Guaranteed Security of such series,
(5) if the Guaranteed Securities of any series are secured,
change the terms and conditions pursuant to which the Guaranteed
Securities of such series are secured in a manner adverse to the
Holders of the secured Guaranteed Securities of such series, or
(6) change in any manner adverse to the interests of the
Holders of any outstanding Guaranteed Securities the terms and
conditions of the obligations of either Guarantor in respect of the due
and punctual payment of the principal thereof and any premium and
interest thereon or any additional amounts or any sinking fund payments
provided in respect thereof.
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 Guaranteed Securities, or which
modifies the rights of the Holders of Guaranteed Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Guaranteed Securities of any other
series.
The Issuer may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed, the Holders on such record date
or their duly designated proxies, and only such Persons, shall be entitled to
consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided, that unless such consent shall have
become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90
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days after such record date, any such consent previously given shall
automatically and without further action by any Holder be cancelled and of no
further effect.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
601) shall 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 shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Guaranteed Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
Section 905. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act.
Section 906. Reference in Guaranteed Securities to Supplemental
Indentures. Guaranteed Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article may,
and shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Issuer shall so determine, new Guaranteed Securities of any series so modified
as to conform, in the opinion of the Trustee and the Issuer, to any such
supplemental indenture may be prepared and executed by the Issuer, the
Guarantees endorsed thereon may be executed by each Guarantor and such
Guaranteed Securities may be authenticated and delivered by the Trustee in
exchange for Outstanding Guaranteed Securities of such series.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest. The Issuer
covenants and agrees for the benefit of each series of Guaranteed Securities,
and each of the Guarantors guarantees jointly and severally, that it will duly
and punctually pay the principal of and any premium and interest on the
Guaranteed Securities of that series in accordance with the terms of the
Guaranteed Securities and this Indenture.
Section 1002. Maintenance of Office or Agency. The Issuer and each
Guarantor will maintain in each Place of Payment for any series of Guaranteed
Securities an office or agency where Guaranteed Securities of that series may be
presented or surrendered for payment, where
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Guaranteed Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Issuer or
either Guarantor in respect of the Guaranteed Securities of that series and this
Indenture may be served. Each of the Issuer and the Guarantors initially
appoints the Trustee, acting through its Corporate Trust Office, as its agent
for said purpose. Each of the Issuer and the Guarantors 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 Issuer or a Guarantor shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and each of
the Issuer and the Guarantors hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands.
The Issuer and each Guarantor may also from time to time designate one
or more other offices or agencies where the Guaranteed Securities of one or more
series may be presented or surrendered for any or all such purposes and may from
time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Issuer or either
Guarantor of its obligation to maintain an office or agency in each Place of
Payment for Guaranteed Securities of any series for such purposes. The Issuer
and each Guarantor will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
Section 1003. Money for Guaranteed Securities Payments to Be Held in
Trust. If the Issuer or a Guarantor shall at any time act as its own Paying
Agent with respect to any series of Guaranteed Securities, it will, on or before
each due date of the principal of or any premium or interest on any of the
Guaranteed 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.
Whenever the Issuer or either Guarantor shall have one or more Paying
Agents for any series of Guaranteed Securities, it will, prior to each due date
of the principal of or any premium or interest on any Guaranteed Securities of
that series, deposit with a Paying Agent a sum sufficient to pay the principal
or any premium or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal or any premium or interest,
and (unless such Paying Agent is the Trustee) the Issuer or such Guarantor, as
the case may be, will promptly notify the Trustee of its action or failure so to
act.
The Issuer and each Guarantor will cause each Paying Agent for any
series of Guaranteed Securities other than the Trustee to execute and deliver to
the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of or any premium or interest on Guaranteed Securities of that series
in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided;
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(2) give the Trustee notice of any default by the Issuer or
such Guarantor (or any other obligor upon the Guaranteed Securities of
that series) in the making of any payment of principal or any premium
or interest on the Guaranteed Securities of that series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Issuer or a Guarantor may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Issuer Order or Guarantor Order, as the case may be, direct any Paying
Agent to pay, to the Trustee all sums held in trust by the Issuer or such
Guarantor 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 Issuer or such
Guarantor or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Issuer or a Guarantor, in trust for the payment of the principal of or
any premium or interest on any Guaranteed Security of any series and remaining
unclaimed for two years after such principal or any premium or interest has
become due and payable shall be paid to the Issuer or such Guarantor on Issuer
Request or Guarantor Request, as the case may be, or (if then held by the Issuer
or a Guarantor) shall be discharged from such trust; and the Holder of such
Guaranteed Security shall thereafter, as an unsecured general creditor, look
only to the Issuer or the Guarantors for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Issuer or the Guarantors as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Issuer or the
Guarantors, as the case may be, cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in New York, New York, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Issuer or such Guarantor.
Section 1004. Statement by Officers as to Default. The Issuer and each
of the Guarantors will deliver to the Trustee, within 120 days after the end of
each fiscal year of United Dominion Industries Limited ending after the date
hereof, an Officers' Certificate, stating whether or not to the best knowledge
of the signers thereof the Issuer or Guarantor 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 Issuer or such Guarantor shall be in default, specifying
all such defaults and the nature and status thereof of which they may have
knowledge.
Section 1005. Existence. Subject to Article Eight, each of the Issuer
and the Guarantors will do or cause to be done all things necessary to preserve
and keep in full force and effect its corporate existence and rights (charter
and statutory); provided however, that none of the Issuer and the Guarantors
shall be required to preserve any such right if its Board of Directors shall
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determine that the preservation thereof is no longer desirable in the conduct of
the business of the Issuer or such Guarantor, and that the loss thereof is not
disadvantageous in any material respect to the Holders.
Section 1006. Maintenance of Properties. Each of the Issuer and the
Guarantors will cause all Principal Properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order, ordinary wear and tear excepted, 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 Issuer or such Guarantor may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section shall
prevent the Issuer or either Guarantor from discontinuing the operation or
maintenance of any of such properties if such discontinuance is, in the judgment
of the Issuer or such Guarantor, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
Section 1007. Payment of Taxes and Other Claims. Each of the Issuer and
the Guarantors will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon the Issuer or such Guarantor or any Subsidiary or
upon the income, profits or property of the Issuer or such Guarantor or any
Subsidiary, and (2) all lawful claims for labor, materials and supplies which,
if unpaid, might by law become a lien upon the property of the Issuer or such
Guarantor or any Subsidiary, in each case, if failure to pay or discharge the
same could be reasonably expected to have a material adverse effect on the
ability of the Issuer or either Guarantor to perform its obligations hereunder;
provided, however, that such Issuer or any Guarantor shall not be required to
pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings.
Section 1008. Limitations on Liens. So long as any Guaranteed
Securities are Outstanding, none of the Issuer or the Guarantors will issue,
assume or guarantee, and will not permit any Restricted Subsidiary to issue,
assume or guarantee, any Indebtedness which is secured by a mortgage, pledge,
security interest, lien or encumbrance (any mortgage, pledge, security interest,
lien or encumbrance being hereinafter in this Article referred as a "lien" or
"liens") of or upon any Principal Property of the Issuer or a Guarantor or any
such Restricted Subsidiary, or upon the shares of stock or Indebtedness of any
Restricted Subsidiary, in each case whether now owned or hereafter acquired,
without effectively providing that the Guaranteed Securities (together with, if
the Issuer or such Guarantor shall so determine, any other Indebtedness of the
Issuer or such Guarantor ranking equally with the Guaranteed Securities) shall
be equally and ratably secured by a lien ranking ratably with and equal to (or
at the Issuer's or such Guarantor's option prior to) such secured Indebtedness;
provided, however, that the foregoing restriction shall not apply to:
(a) liens existing on Indebtedness on the date of this Indenture;
(b) liens on any assets qualified as current assets in accordance with
Canadian generally accepted accounting principles that are the subject of a
transaction involving the sale or other transfer by the Issuer or a Guarantor or
a Subsidiary of receivables that (1) are produced in the ordinary course of
business and are not contingent on any performance or product guaranty, and
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provided that sale or transfer does not involve the creation of any recourse
obligation in regard to those assets by the Issuer or a Guarantor or any
Subsidiary (other than with respect to title to, and other character of, the
assets sold or transferred, and (2) do not exceed $200,000,000 in face principal
amount for those assets at any time outstanding.
(c) liens on any assets of any corporation existing at the time such
corporation becomes a Restricted Subsidiary;
(d) liens on any assets existing at the time of acquisition of such
assets by the Issuer, a Guarantor or a Restricted Subsidiary, or liens to secure
the payment of all or any part of the purchase price of such assets upon the
acquisition of such assets by the Issuer, a Guarantor or a Restricted Subsidiary
or to secure any Indebtedness incurred, assumed or guaranteed by the Issuer, a
Guarantor or a Restricted Subsidiary prior to, at the time of, or within 180
days after such acquisition (or in the case of real property, the completion of
construction (including any improvements on an existing asset) or commencement
of full operation of such asset, whichever is later) which Indebtedness is
incurred, assumed or guaranteed for the purpose of financing all or any part of
the purchase price thereof or, in the case of real property, construction or
improvements thereon; provided, however, that in the case of any such
acquisition, construction or improvement, the lien shall not apply to any
Principal Property of the Issuer, a Guarantor or a Restricted Subsidiary or
shares of stock or Indebtedness of a Restricted Subsidiary theretofore owned by
the Issuer, such Guarantor or a Restricted Subsidiary, other than, in the case
of any such construction or improvement, any real property on which the property
so constructed, or the improvement, is located;
(e) liens on any assets to secure Indebtedness of a Restricted
Subsidiary to the Issuer, a Guarantor or to any wholly owned Restricted
Subsidiary;
(f) liens on any assets of a corporation existing at the time such
corporation is merged into or consolidated with the Issuer, a Guarantor or a
Restricted Subsidiary or at the time of a purchase, lease or other acquisition
of the assets of a corporation or firm as an entirety or substantially as an
entirety by the Issuer, a Guarantor or a Restricted Subsidiary;
(g) liens on any assets of the Issuer, a Guarantor or a Restricted
Subsidiary in favor of the United States of America or any State thereof, or any
department, agency or instrumentality or political subdivision of the United
States of America or any State thereof, or in favor of any other country, or any
political subdivision thereof, to secure partial, progress, advance or other
payments pursuant to any contract or statute or to secure any Indebtedness
incurred or guaranteed for the purpose of financing all or any part of the
purchase price (or, in the case of real property, the cost of construction) of
the assets subject to such liens (including, but not limited to, liens incurred
in connection with pollution control, industrial revenue or similar financings);
(h) Mechanics', materialmen's, carriers', warehouseman's or similar
liens arising in the ordinary course of business (including in the construction
of facilities) relating to obligations not due or which are being contested;
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(i) deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in the
ordinary course of business and not in connection with the borrowing of money;
(j) liens for taxes, assessments or governmental charges not due or
being contested, landlords' liens, tenants' rights under leases and subleases,
zoning restrictions, easements, rights of way and other restrictions of record
on the use of Principal Property and defects in title arising or incurred in the
ordinary course of business, and similar liens not materially impairing the use
of value of the property involved;
(k) any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part of any lien referred to in the
foregoing clauses (a) to (j), inclusive; provided, however, that the principal
amount of Indebtedness secured thereby shall not exceed the principal amount of
Indebtedness so secured at the time of such extension, renewal or replacement,
and that such extension, renewal or replacement shall be limited to all or a
part of the assets which secured the lien so extended, renewed or replaced (plus
improvements and construction on real property);
(l) any attachment or judgment lien being contested in good faith,
unless the judgment it secures has not, within 60 days after the entry thereof,
been discharged or execution thereof stayed pending appeal, or has not been
discharged within 60 days after the expiration of any such stay; and
(m) liens not permitted by clauses (a) through (l) above if at the time
of, and after giving effect to, the creation or assumption of any such lien, the
aggregate amount of all Indebtedness of the Issuer, the Guarantors or the
Restricted Subsidiaries secured by all such liens not so permitted by clauses
(a) through (l) above together with the Attributable Debt in respect of Sale and
Lease-Back Transactions permitted by paragraph (a) of Section 1010 do not exceed
15% of Consolidated Net Assets.
Section 1009. Limitation on Indebtedness of Restricted Subsidiaries.
The Issuer and the Guarantors will not permit any Restricted Subsidiary other
than the Issuer and United Dominion Holdings, Inc. to incur any Indebtedness
(other than Indebtedness to the Issuer or a Guarantor or to a wholly-owned
Subsidiary of the Issuer or a Guarantor) if, immediately after the incurrence or
assumption of the Indebtedness the aggregate outstanding principal amount of all
Indebtedness of the Restricted Subsidiaries (other than the Issuer and United
Dominion Holdings, Inc.) would exceed 25% of Consolidated Net Assets, provided
that, in any event, a Restricted Subsidiary may incur Indebtedness to extend,
renew or replace Indebtedness of that Restricted Subsidiary to the extent that
the principal amount of the Indebtedness incurred does not, immediately prior to
the extension, renewal or replacement, exceed the principal amount of the
Indebtedness extended, renewed or replaced, plus any premium, accrued and unpaid
interest or capitalized interest payable on that Indebtedness.
Section 1010. Limitations on Sale and Lease-Back. Each of the Issuer
and the Guarantors agrees that it will not, and will not permit any Restricted
Subsidiary to, enter into any arrangement with any person providing for the
leasing by the Issuer or such Guarantor or a
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Restricted Subsidiary of any Principal Property, other than any such arrangement
involving a lease for a term, including renewal rights, for not more than 3
years, whereby such property or asset has been or is to be sold or transferred
by the Issuer or such Guarantor or any Restricted Subsidiary to such person
(herein referred to as a "Sale and Lease-Back Transaction"), unless:
(a) the Issuer, such Guarantor or such Restricted Subsidiary would, at
the time of entering into a Sale and Lease-Back Transaction, be entitled to
incur Indebtedness secured by a lien on the Principal Property to be leased in
an amount at least equal to the Attributable Debt in respect of such Sale and
Lease-Back Transaction without equally and ratably securing the Guaranteed
Securities pursuant to Section 1008; or
(b) (i) the Issuer or such Guarantor promptly informs the Trustee of
such Transaction, (ii) the proceeds of the sale of the Principal Property to be
leased are at least equal to the fair value of such Principal Property (as
determined by Board of Directors of the Issuer or such Guarantor) and (iii) an
amount equal to the net proceeds from the sale of the Principal Property so
leased is applied, within 180 days of the effective date of such Sale and
Lease-Back Transaction to the purchase or acquisition (or, in the case of
property, the construction) of property or assets or to the retirement of
Guaranteed Securities or of Funded Indebtedness of the Issuer, a Guarantor or a
consolidated Restricted Subsidiary ranking on a parity with or senior to the
Guaranteed Securities.
Section 1011. Waiver of Certain Covenants. The Issuer and the
Guarantors may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 1005, 1008, 1009 or 1010 with
respect to the Guaranteed Securities of any series if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Guaranteed 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 shall extend to or affect
such term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Issuer and each
of the Guarantors and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
The Issuer or a Guarantor may, but shall not be obligated to, fix a
record date for the purpose of determining the Persons entitled to waive
compliance with any covenant or condition hereunder. If a record date is fixed,
the Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to waive any such compliance, whether or not such
Holders remain Holders after such record date; provided, that unless the Holders
of at least a majority in principal amount of the Outstanding Guaranteed
Securities of such series shall have waived such compliance prior to the date
which is 90 days after such record date, any such waiver previously given shall
automatically and without further action by any Holder be cancelled and of no
further effect.
Section 1012. Applicability of Covenants. Any series of Guaranteed
Securities may provide, as contemplated by Section 301, that any one or more of
the covenants set forth in Sections 1008, 1009, 1010 and 1011 and Article
Fifteen shall not be applicable to the Guaranteed Securities of such series.
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Section 1013. Tax Information. If the Trustee is requested or required
to send Form 1099 (or any successor Form) to holders of Original Issue Discount
Securities, the Issuer shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding
Guaranteed Securities as of the end of such year and (ii) such other specific
information relating to such original issue discount as may then be relevant
under the Internal Revenue Code of 1986, as amended from time to time.
Section 1014. Ownership of Issuer. So long as any of the Guaranteed
Securities are outstanding, and subject to the rights of the Issuer and the
Guarantors under Article Eight, the Guarantors will continue to own, directly or
indirectly, all of the outstanding voting shares of Issuer.
ARTICLE ELEVEN
REDEMPTION OF GUARANTEED SECURITIES
Section 1101. Applicability of Article. Guaranteed Securities of any
series which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 301 for Guaranteed Securities of any series) in accordance with this
Article.
Section 1102. Election to Redeem; Notice to Trustee. The election of
the Issuer to redeem any Guaranteed Securities shall be evidenced by a Board
Resolution of the Issuer or in another manner specified as contemplated by
Section 301 for such Guaranteed Securities. In case of any redemption at the
election of the Issuer of the Guaranteed Securities of any series, the Issuer
shall, at least 60 days prior to the Redemption Date fixed by the Issuer (unless
a shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date, of the principal amount of Guaranteed Securities of such
series to be redeemed and, if applicable, of the tenor of the Guaranteed
Securities to be redeemed. In the case of any redemption of Guaranteed
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Guaranteed Securities or elsewhere in this
Indenture, the Issuer shall furnish the Trustee with an Officers' Certificate
and an Opinion of Counsel evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Guaranteed Securities to Be
Redeemed. If less than all the Guaranteed Securities of any series are to be
redeemed (unless all of the Guaranteed Securities of such series and of a
specified tenor are to be redeemed or unless such redemption affects only a
single Guaranteed Security), the particular Guaranteed Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Guaranteed Securities of such series not
previously called for redemption, by such method as the Trustee shall deem fair
and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Guaranteed Securities
of that series or any integral multiple thereof) of the principal amount of
Guaranteed Securities of such series of a denomination larger than the minimum
authorized denomination for Guaranteed Securities of that series. If less than
all of the Guaranteed Securities of such series and of a specified tenor are to
be redeemed (unless such redemption affects only a single Guaranteed Security),
the particular Guaranteed Securities to be redeemed shall be selected not
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more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Guaranteed Securities of such series and specified tenor not
previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Issuer and the Guarantors in
writing of the Guaranteed Securities selected for redemption and, in the case of
any Guaranteed Securities selected for partial redemption, the principal amount
thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Guaranteed Security, whether
such Guaranteed Security is to be redeemed in whole or in part. In the case of
any such redemption in part, the unredeemed portion of the principal amount of
the Guaranteed Security shall be in an authorized denomination (which shall not
be less than the minimum authorized denomination) for such Guaranteed Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Guaranteed Securities
shall relate, in the case of any Guaranteed Securities redeemed or to be
redeemed only in part, to the portion of the principal amount of such Guaranteed
Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption. Notice of redemption shall be given
by first-class mail, postage prepaid, mailed not less than 30 nor more than 60
days prior to the Redemption Date, to each Holder of Guaranteed Securities to be
redeemed, at his address appearing in the Security Register.
All notices of redemption shall identify the Guaranteed Securities to
be redeemed (including CUSIP Numbers) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Guaranteed Securities of
any series are to be redeemed, the identification (and, in the case of
partial redemption of any Guaranteed Securities, the principal amounts)
of the particular Guaranteed Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Guaranteed Security to be
redeemed and, if applicable, that interest thereon will cease to accrue
on and after said date,
(5) the place or places where such Guaranteed Securities are
to be surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
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Notice of redemption of Guaranteed Securities to be redeemed at the
election of the Issuer shall be given by the Issuer or, at the Issuer's request,
by the Trustee in the name and at the expense of the Issuer.
Section 1105. Deposit of Redemption Price. Prior to 12:00 noon New York
City time on any Redemption Date, the Issuer shall deposit with the Trustee or
with a Paying Agent (or, if the Issuer is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Guaranteed
Securities which are to be redeemed on that date.
Section 1106. Guaranteed Securities Payable on Redemption Date. Notice
of redemption having been given as aforesaid, the Guaranteed Securities so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified, and from and after such date (unless the Issuer shall
default in the payment of the Redemption Price and accrued interest) such
Guaranteed Securities shall cease to bear interest. Upon surrender of any such
Guaranteed Security for redemption in accordance with said notice, such
Guaranteed Security shall be paid by the Issuer at the Redemption Price,
together with accrued interest to the Redemption Date; provided, however, that,
unless otherwise specified as contemplated by Section 301, installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Guaranteed Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Guaranteed Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and any premium shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Guaranteed Security.
Section 1107. Guaranteed Securities Redeemed in Part. Any Guaranteed
Security which is to be redeemed only in part shall be surrendered at a Place of
Payment therefor (with, if the Issuer or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Issuer and the Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing), and the Issuer shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Guaranteed Security without
service charge, a new Guaranteed Security or Guaranteed Securities of the same
series and of like tenor, having endorsed thereon the Guarantees executed by
each of the Guarantors, 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 Guaranteed Security so surrendered.
If a Global Security is so surrendered, such new Guaranteed Security so issued
shall be a new Global Security.
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Guaranteed
Securities of a series except as otherwise specified as contemplated by Section
301 for Guaranteed Securities of such series.
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The minimum amount of any sinking fund payment provided for by the
terms of Guaranteed 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 Guaranteed Securities of any series is
herein referred to as an "optional sinking fund payment". If provided for by the
terms of Guaranteed Securities of any series, the cash amount of any sinking
fund payment may be subject to reduction as provided in Section 1202. Each
sinking fund payment shall be applied to the redemption of Guaranteed Securities
of any series as provided for by the terms of Guaranteed Securities of such
series.
Section 1202. Satisfaction of Sinking Fund Payments with Guaranteed
Securities. The Issuer (1) may deliver Outstanding Guaranteed Securities of a
series (other than any previously called for redemption) and (2) may apply as a
credit Guaranteed Securities of a series which have been redeemed either at the
election of the Issuer pursuant to the terms of such Guaranteed Securities or
through the application of permitted optional sinking fund payments pursuant to
the terms of such Guaranteed Securities, in each case in satisfaction of all or
any part of any sinking fund payment with respect to the Guaranteed Securities
of such series required to be made pursuant to the terms of such Guaranteed
Securities as and to the extent provided for by the terms of such series;
provided that such Guaranteed Securities have not been previously so credited.
Such Guaranteed Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Guaranteed Securities for
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.
Section 1203. Redemption of Guaranteed Securities for Sinking Fund. Not
less than 45 days prior to each sinking fund payment date for any series of
Guaranteed Securities, the Issuer will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Guaranteed Securities of
that series pursuant to Section 1202 and will also deliver to the Trustee any
Guaranteed Securities to be so delivered. Not less than 30 days before each such
sinking fund payment date the Trustee shall select the Guaranteed Securities to
be redeemed upon such sinking fund payment date in the manner specified in
Section 1103 and cause notice of the redemption thereof to be given in the name
of and at the expense of the Issuer in the manner provided in Section 1104. Such
notice having been duly given, the redemption of such Guaranteed Securities
shall be made upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
GUARANTEES
Section 1301. Guarantee. Each Guarantor hereby guarantees, jointly and
severally, fully, unconditionally and irrevocably, to each Holder of any
Guaranteed Security issued hereunder, and to the Trustee on behalf of each such
Holder, all of the obligations of the Issuer under this Indenture and the
Guaranteed Securities, on an equal and ratable basis, including, without
limitation, the due and punctual payment of the principal of and any premium and
interest on each such Guaranteed Security (including any additional amounts
payable in accordance with the terms of any such Guaranteed Security and this
Indenture) and the due and punctual payment of
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any sinking fund payments provided for pursuant to the terms of any such
Guaranteed Security when and as the same shall become due and payable, whether
at the Stated Maturity, if any, by declaration of acceleration, call for
redemption, request for redemption, repayment at the option of the Holder or
otherwise, in accordance with the terms of such Guaranteed Security and of this
Indenture. In case of a default by the Issuer to make any such payment of
principal of or any premium or interest (including any additional amounts as
referred to above) or sinking fund payment, each Guarantor hereby so agrees to
make punctually when and as the same shall become due and payable, whether at
the Stated Maturity, if any, by declaration of acceleration, call for
redemption, request for redemption, repayment at the option of the Holder or
otherwise, any such payment of principal of and any premium or interest
(including additional amounts as referred to above), and sinking fund payment,
as if such payment were made by the Issuer.
Each Guarantor shall be jointly and severally obligated to pay to the
Holder of Guaranteed Securities such additional amounts as may be necessary in
order that every net payment of the principal of and any premium and interest on
Guaranteed Securities after deduction or other withholding for or on account of
any present or future tax, assessment, duty or other governmental charge of any
nature whatsoever imposed, levied or collected by or on behalf of the country in
which such Guarantor is organized or any political subdivision or taxing
authority thereof or therein having power to tax, will not be less than the
amount provided for in the Guaranteed Securities to be then due and payable;
provided, however, that the foregoing obligation to pay additional amounts will
not apply on account of any tax, assessment, duty or other governmental charge
which is payable (a) otherwise than by deduction or withholding from payments of
principal of or any premium or interest on the Guaranteed Securities; or (b) by
reason of the Holder having, or having had, some personal or business connection
with the country in which such Guarantor is organized and not merely by reason
of the fact that payments are, for the purposes of taxation, deemed to be from
sources in, or secured in, the country in which such Guarantor is organized; or
(c) by reason of a change in law or official practice of any relevant taxing
authority that becomes effective on or after the date of the relevant Stated
Maturity in respect to Guaranteed Securities; or (d) by reason of any estate,
excise, inheritance, gift, sales, transfer, wealth, personal property tax or any
similar assessment or governmental charge; or (e) as a result of the failure of
the Holder to satisfy any statutory requirements or make a declaration of
non-residence or other similar claim for exemption to the relevant tax
authority; or (f) owing to any combination of clauses (a) through (e) above.
Each Guarantor hereby agrees that upon an Event of Default its
obligation hereunder shall be as if it were the Issuer hereunder and a principal
debtor and not merely surety, and shall be absolute and unconditional,
irrespective of, and shall be unaffected by, any invalidity, irregularity or
unenforceability of any such Guaranteed Security or this Indenture, the absence
of any action to enforce the same, any waiver or consent by the Holder of any
such Guaranteed Security or by the Trustee or the Paying Agent with respect to
any provisions thereof or of this Indenture, the recovery of any judgment
against the Issuer, as the Issuer, or any action to enforce the same or any
other circumstances which might otherwise constitute a legal or equitable
discharge or defense of a Guarantor. Each Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Issuer, any right to require a proceeding first
against the Issuer, protest or notice with respect to such Guaranteed Security
or the Indebtedness evidenced thereby or with respect to any sinking fund
payment required pursuant to the terms of any such Guaranteed Security and all
demands
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whatsoever, and covenants that the Guarantee of such Guarantor will not be
discharged except by complete performance of all of the obligations of the
Guarantors contained in this Indenture and in any such Guaranteed Security and
in each Guarantee. If the Trustee or the Holder of any such Guaranteed Security
is required by any court or otherwise to return (and does so return) to the
Issuer or to a Guarantor, or any custodian, receiver, liquidator, trustee,
sequestrator or other similar official acting in relation to the Issuer or a
Guarantor, any amount paid to the Trustee or such Holder in respect of any such
Guaranteed Security, the Guarantee of such Guarantor, to the extent theretofore
discharged, shall be reinstated in full force and effect. Each Guarantor further
agrees, to the fullest extent that it lawfully may do so, that, as between the
Guarantors, on the one hand, and the Holders and Trustee, on the other hand, the
Maturity of the obligations guaranteed hereby may be accelerated as provided in
Section 502 hereof for the purposes of the Guarantee, notwithstanding any stay,
injunction or other prohibition extant under any applicable Bankruptcy Law
preventing such acceleration in respect to the obligations guaranteed hereby.
The Guarantors shall be subrogated to all rights of the Holders of such
Guaranteed Securities of a particular series against the Issuer in respect of
any amounts paid to such Holders by the Guarantors pursuant to the provisions of
the Guarantees under this Indenture; provided, however, that the Guarantors
shall not be entitled to receive any payments arising out of the subrogation
from the Issuer while (i) any Event of Default shall have occurred and be
continuing with respect to any Guaranteed Securities issued by the Issuer under
Section 501(1), 501(2), 501(3), 501(5), 501(6), 501(7) or 501(4) (but only to
the extent such Event of Default under Section 501(4) arises out of a default by
the Issuer or a Guarantor under the covenants set forth in Sections 1001, 1003,
1007 or 1008), or (ii) any default (which with the passage of time would become
an Event of Default) with respect to any Guaranteed Securities issued by the
Issuer, under Section 501(1) or 501(2), shall have occurred and be continuing.
Each Guarantor that makes a payment or distribution under the Guarantee
will be entitled to contribution from the other Guarantor in a pro rata amount
based on the net assets of each Guarantor determined in accordance with Canadian
generally accepted accounting principles.
Each Guarantee (including the payment of principal of and any premium
and interest on the Guaranteed Securities) will rank equally in right of payment
with all other existing and future unsecured and unsubordinated Indebtedness of
such Guarantor and will rank senior in right of payment to all subordinated
Indebtedness of such Guarantor.
Section 1302. Execution and Delivery of Guarantees. To evidence its
Guarantee provided in Section 1301, each Guarantor hereby agrees to execute the
Guarantee, in a form established pursuant to Section 202, to be endorsed on each
Guaranteed Security issued hereunder by the Issuer and authenticated and
delivered by the Paying Agent. Each such Guarantee shall be executed on behalf
of each Guarantor by any two of each of its authorized representatives. The
signature of any authorized representative on each Guarantee may be manual or
facsimile.
Any Guarantee bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of a Guarantor shall bind such
Guarantor, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and
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delivery of the Guaranteed Securities upon which any such Guarantee is endorsed
or did not hold such offices at the date of such Guaranteed Securities.
The delivery of any such Guaranteed Security by the Paying Agent, after
the authentication thereof hereunder, shall constitute due delivery of the
Guarantee endorsed thereon on behalf of each Guarantor. Each Guarantor hereby
agrees that its Guarantee set forth in Section 1301 shall remain in full force
and effect notwithstanding any failure to endorse on each such Guaranteed
Security a notation of such Guarantee.
ARTICLE FOURTEEN
REPAYMENT AT THE OPTION OF THE HOLDERS
Section 1401. Applicability of Article. Repayment of Guaranteed
Securities of any series before their Stated Maturity at the option of Holders
thereof shall be made in accordance with the terms of such Guaranteed Securities
and (except as otherwise specified as contemplated by Section 301 for Guaranteed
Securities of any series) in accordance with this Article.
Section 1402. Repayment of Guaranteed Securities. Guaranteed Securities
of any series subject to repayment in whole or in part at the option of the
Holders thereof will, unless otherwise provided in the terms of such Guaranteed
Securities, be repaid at a price equal to the principal amount thereof, together
with any premium and interest thereon accrued to the Repayment Date specified in
or pursuant to the terms of such Guaranteed Securities. The Issuer covenants
that on or before the Repayment Date it will deposit with the Trustee or with a
Paying Agent (or, if the Issuer is acting as its own Paying Agent, segregate and
hold in trust as provided in Section 1003) an amount of money sufficient to pay
the principal (or, if so provided by the terms of the Guaranteed Securities of
any series, a percentage of the principal) of, the premium, if any, and (except
if the Repayment Date shall be an Interest Payment Date) accrued interest on,
all the Guaranteed Securities or portions thereof, as the case may be, to be
repaid on such date.
Section 1403. Exercise of Option. Guaranteed Securities of any series
subject to repayment at the option of the Holders thereof will contain an
"Option to Elect Repayment" form on the reverse of such Guaranteed Securities.
To be repaid at the option of the Holder, any Guaranteed Security so providing
for such repayment, with the "Option to Elect Repayment" form on the reverse of
such Guaranteed Security duly completed by the Holder (or by the Holder's
attorney duly authorized in writing), must be received by the Issuer at the
Place of Payment therefor specified in the terms of such Guaranteed Security (or
at such other place or places of which the Issuer shall from time to time notify
the Holders of such Guaranteed Securities) not earlier than 45 days nor later
than 30 days prior to the Repayment Date. If less than the entire principal
amount of such Guaranteed Security is to be repaid in accordance with the terms
of such Guaranteed Security, the principal amount of such Guaranteed Security to
be repaid, in increments of the minimum denomination for Guaranteed Securities
of such series, the premium, if any, to be paid, and the denomination or
denominations of the Guaranteed Security or Guaranteed Securities to be issued
to the Holder for the portion of the principal amount of such Guaranteed
Security surrendered that is not to be repaid, must be specified. The principal
amount of any Guaranteed Security providing for repayment at the option of the
Holder thereof may not be repaid in part if, following such repayment, the
unpaid principal amount of such Guaranteed Security would be less than the
minimum authorized denomination of Guaranteed
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Securities of the series of which such Guaranteed Security to be repaid is a
part. Except as otherwise may be provided by the terms of any Guaranteed
Security providing for repayment at the option of the Holder thereof and as
provided in Sections 307(b) and 308, exercise of the repayment option by the
Holder shall be irrevocable unless waived by the Issuer.
Section 1404. When Guaranteed Securities Presented for Repayment Become
Due and Payable. If Guaranteed Securities of any series providing for repayment
at the option of the Holders thereof shall have been surrendered as provided in
this Article and as provided by or pursuant to the terms of such Guaranteed
Securities, such Guaranteed Securities or the portions thereof, as the case may
be, to be repaid shall become due and payable and shall be paid by the Issuer on
the Repayment Date therein specified, and on and after such Repayment Date
(unless the Issuer shall default in the payment of such Guaranteed Securities on
such Repayment Date) such Guaranteed Securities shall, if the same were
interest-bearing, cease to bear interest. Upon surrender of any such Guaranteed
Security for repayment in accordance with such provisions, the principal amount
of such Guaranteed Security so to be repaid shall be paid by the Issuer,
together with accrued interest and premium, if any, to the Repayment Date;
provided, however, that installments of interest, if any, whose Stated Maturity
is on or prior to the Repayment Date shall be payable (but without interest
thereon, unless the Issuer shall default in the payment thereof) to the Holders
of such Guaranteed Securities, or one or more Predecessor Securities, registered
as such at the close of business on the relevant Record Dates according to their
terms and the provisions of Section 307.
If the principal amount of any Guaranteed Security surrendered for
repayment shall not be so repaid upon surrender thereof, such principal amount
(together with interest, if any, thereon accrued to such Repayment Date) shall,
until paid, bear interest from the Repayment Date at the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) set forth
in such Guaranteed Security.
Section 1405. Guaranteed Securities Repaid in Part. Upon surrender of
any Guaranteed Security which is to be repaid in part only, the Issuer shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Guaranteed Security, without service charge and at the expense of the Issuer, a
new Guaranteed Security or Guaranteed Securities of the same series, of any
authorized denomination specified by the Holder, in an aggregate principal
amount equal to and in exchange for the portion of the principal of such
Guaranteed Security so surrendered which is not to be repaid.
ARTICLE FIFTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1501. Issuer's Option to Effect Defeasance or Covenant
Defeasance. The Issuer may elect, at its option at any time, to have Section
1502 or Section 1503 applied to any Guaranteed Securities or any series of
Guaranteed Securities, as the case may be, (unless designated pursuant to
Section 301 as not being defeasible pursuant to such Section 1502 or 1503), in
accordance with any applicable requirements provided pursuant to Section 301 and
upon compliance with the conditions set forth below in this Article. Any such
election shall be evidenced by a Board Resolution of the Issuer or in another
manner specified as contemplated by Section 301 for such Guaranteed Securities.
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Section 1502. Defeasance and Discharge. Upon the Issuer's exercise of
its option (if any) to have this Section applied to any Guaranteed Securities or
any series of Guaranteed Securities, as the case may be, the Issuer and the
Guarantors shall be deemed to have been discharged from their obligations with
respect to such Guaranteed Securities as provided in this Section on and after
the date the conditions set forth in Section 1504 are satisfied (referred to
herein as "Defeasance"). For this purpose, such Defeasance means that the Issuer
shall be deemed to have paid and discharged the entire indebtedness represented
by such Guaranteed Securities and to have satisfied all its other obligations
under such Guaranteed Securities and this Indenture insofar as such Guaranteed
Securities are concerned (and the Trustee, at the expense of the Issuer, shall
execute proper instruments acknowledging the same), subject to the following
which shall survive until otherwise terminated or discharged hereunder: (1) the
rights of Holders of such Guaranteed Securities to receive, solely from the
trust fund described in Section 1504 and as more fully set forth in such
Section, payments in respect of the principal of and any premium and interest on
such Guaranteed Securities when payments are due, (2) each of the Issuer's and
the Guarantors' obligations with respect to such Guaranteed Securities under
Sections 304, 305, 306, 1002 and 1003, (3) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and (4) this Article. Subject to
compliance with this Article, the Issuer may exercise its option (if any) to
have this Section applied to any Guaranteed Securities notwithstanding the prior
exercise of the Issuer's option (if any) to have Section 1503 applied to such
Guaranteed Securities.
Section 1503. Covenant Defeasance. Upon the Issuer's exercise of the
above option applicable to this Section, the Issuer, as the case may be, shall
be released from its obligations under Sections 801, 1008, 1009 and 1010 (and
any covenant applicable to such Guaranteed Securities that are determined
pursuant to Section 301(16) to be subject to this provision) and the occurrence
of an event specified in Section 501(4) (with respect to any of Sections 801,
1008, 1009 or 1010) (and any other Event of Default applicable to such
Guaranteed Securities that are determined pursuant to Section 301(16) to be
subject to this provision) shall not be deemed to be an Event of Default with
respect to the Outstanding Guaranteed Securities of such series on and after the
date the conditions set forth below are satisfied (hereinafter, "Covenant
Defeasance"), and such Guaranteed Securities shall thereafter be deemed not to
be "Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with Sections 801, 1008, 1009 and 1010 (and such covenant), but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such Covenant Defeasance means that, with respect to the Outstanding
Guaranteed Securities of such series, the Issuer may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such Section or such covenant whether directly or indirectly by
reason of any reference elsewhere herein to any such Section or such covenant or
by reason of any reference in any such Section or such covenant to any other
provision herein or in any other document, but the remainder of this Indenture
and such Guaranteed Securities shall be unaffected thereby.
Section 1504. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to the application of Section 1502 or Section
1503 to any Guaranteed Securities or any series of Guaranteed Securities, as the
case may be:
80
<PAGE> 85
(1) The Issuer shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 609 and agrees to comply with the
provisions of this Article applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically pledged
as security for, and dedicated solely to, the benefits of the Holders
of such Guaranteed Securities, (A) money in an amount, or (B) U.S.
Government Obligations which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, in each case
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or any such other qualifying trustee) to pay
and discharge, the principal of and any premium and interest on such
Guaranteed Securities on the respective Stated Maturities, in
accordance with the terms of this Indenture and such Guaranteed
Securities. As used herein, "U.S. Government Obligation" means (x) any
security which is (i) a direct obligation of the United States of
America for the payment of which the 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 (y) any depositary
receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any U.S. Government
Obligation which is specified in clause (x) above and held by such bank
for the account of the holder of such depositary receipt, or with
respect to any specific payment of principal of or interest on any U.S.
Government Obligation which is so specified and held, 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.
(2) In the event of an election to have Section 1502 apply to
any Guaranteed Securities or any series of Guaranteed Securities, as
the case may be, the Issuer shall have delivered to the Trustee an
Opinion of Counsel stating that (A) the Issuer has received from, or
there has been published by, the Internal Revenue Service a ruling or
(B) since the date of this instrument, there has been a change in the
applicable federal income tax law, in either case (A) or (B) to the
effect that, and based thereon such opinion shall confirm that, the
Holders of such Guaranteed Securities 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 such Guaranteed Securities
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.
(3) In the event of an election to have Section 1503 apply to
any Guaranteed Securities or any series of Guaranteed Securities, as
the case may be, the Issuer shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of such
81
<PAGE> 86
Guaranteed Securities 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 such Guaranteed Securities 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.
(4) The Issuer shall have delivered to the Trustee an
Officers' Certificate to the effect that neither such Guaranteed
Securities nor any other Guaranteed Securities of the same series, if
then listed on any Guaranteed Securities exchange, will be delisted as
a result of such deposit.
(5) No event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to such Guaranteed
Securities or any other Guaranteed Securities shall have occurred and
be continuing at the time of such deposit or, with regard to any such
event specified in Sections 501(6) and (7), at any time on or prior to
the 90th day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until after such 90th
day).
(6) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Guaranteed Securities are in default within
the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under, any other
material agreement or instrument to which the Issuer or a Guarantor is
a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in
the trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act unless such trust
shall be registered under such Act or exempt from registration
thereunder.
(9) The Issuer shall have delivered to the Trustee an
agreement whereby the Issuer irrevocably agrees to forfeit its right,
if any, (A) to reset the interest rate of such Guaranteed Securities
pursuant to Section 307(b) and (B) to extend the Stated Maturity of
such Guaranteed Securities pursuant to Section 308.
(10) The Issuer shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
Section 1505. Acknowledgment of Discharge By Trustee. Subject to
Section 1507 below and after the Issuer has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent referred to in Section 1504, as the case may be, relating
to the Defeasance or satisfaction and discharge of this Indenture have been
complied with, the Trustee upon request of the Issuer shall acknowledge in
writing the Defeasance or the
82
<PAGE> 87
satisfaction and discharge, as the case may be, of this Indenture and the
discharge of the Issuer's obligations under this Indenture.
Section 1506. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Miscellaneous Provisions. Subject to the provisions of the last
paragraph of Section 1003, 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 and Section 1506, the Trustee and any such
other trustee are referred to collectively as the "Trustee") pursuant to Section
1504 in respect of any Guaranteed Securities shall be held in trust and applied
by the Trustee, in accordance with the provisions of such Guaranteed Securities
and this Indenture, to the payment, either directly or through any such Paying
Agent (including the Issuer acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Guaranteed Securities, 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.
The Issuer shall 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 1504 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of Outstanding Guaranteed Securities.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Issuer from time to time upon Issuer Request any
money or U.S. Government Obligations held by it as provided in Section 1504 with
respect to any Guaranteed Securities which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect the Defeasance or
Covenant Defeasance, as the case may be, with respect to such Guaranteed
Securities.
Section 1507. Reinstatement. If the Trustee or the Paying Agent is
unable to apply any money in accordance with this Article with respect to any
Guaranteed Securities by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the obligations under this Indenture and such Guaranteed
Securities from which the Issuer has been discharged or released pursuant to
Section 1502 or 1503 shall be revived and reinstated as though no deposit had
occurred pursuant to this Article with respect to such Guaranteed Securities,
until such time as the Trustee or Paying Agent is permitted to apply all money
held in trust pursuant to Section 1505 with respect to such Guaranteed
Securities in accordance with this Article; provided, however, that if the
Issuer makes any payment of principal of or any premium or interest on any such
Guaranteed Security following such reinstatement of its obligations, the Issuer
shall be subrogated to the rights (if any) of the Holders of such Guaranteed
Securities to receive such payment from the money so held in trust.
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
83
<PAGE> 88
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
UNITED DOMINION INDUSTRIES, INC.
as Issuer
By
------------------------------------
Name:
---------------------------------
Title:
--------------------------------
By
------------------------------------
Name:
---------------------------------
Title:
--------------------------------
UNITED DOMINION INDUSTRIES LIMITED
as Guarantor
By
------------------------------------
Name:
---------------------------------
Title:
--------------------------------
By
------------------------------------
Name:
---------------------------------
Title:
--------------------------------
UNITED DOMINION HOLDINGS, INC.
as Guarantor
By
------------------------------------
Name:
---------------------------------
Title:
--------------------------------
<PAGE> 89
By
------------------------------------
Name:
---------------------------------
Title:
--------------------------------
FIRST UNION NATIONAL BANK
By
------------------------------------
Name:
---------------------------------
Title:
--------------------------------
<PAGE> 90
STATE OF )
) ss.:
COUNTY OF )
On the _______ day of ________________, 2000, before me personally came
_________________________, to me known, who, being by me duly sworn, did depose
and say that he is _________________ of United Dominion Industries, Inc., one of
the corporations described in and which executed the foregoing Indenture; that
he knows the seal of said corporation; that the seal affixed to said Indenture
is such corporate seal; that it was so affixed by the authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
--------------------------------------------------
Notary Public My Commission Expires:
--------------
<PAGE> 91
STATE OF )
) ss.:
COUNTY OF )
On the _______ day of ________________, 2000, before me personally came
_________________________, to me known, who, being by me duly sworn, did depose
and say that he is _________________ of United Dominion Industries, Inc., one of
the corporations described in and which executed the foregoing Indenture; that
he knows the seal of said corporation; that the seal affixed to said Indenture
is such corporate seal; that it was so affixed by the authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
--------------------------------------------------
Notary Public My Commission Expires:
--------------
<PAGE> 92
STATE OF )
) ss.:
COUNTY OF )
On the _______ day of ________________, 2000, before me personally came
_________________________, to me known, who, being by me duly sworn, did depose
and say that he is _________________ of United Dominion Industries Limited, one
of the corporations described in and which executed the foregoing Indenture;
that he knows the seal of said corporation; that the seal affixed to said
Indenture is such corporate seal; that it was so affixed by the authority of the
Board of Directors of said corporation, and that he signed his name thereto by
like authority.
--------------------------------------------------
Notary Public My Commission Expires:
--------------
<PAGE> 93
STATE OF )
) ss.:
COUNTY OF )
On the _______ day of ________________, 2000, before me personally came
_________________________, to me known, who, being by me duly sworn, did depose
and say that he is _________________ of United Dominion Industries Limited, one
of the corporations described in and which executed the foregoing Indenture;
that he knows the seal of said corporation; that the seal affixed to said
Indenture is such corporate seal; that it was so affixed by the authority of the
Board of Directors of said corporation, and that he signed his name thereto by
like authority.
--------------------------------------------------
Notary Public My Commission Expires:
--------------
<PAGE> 94
STATE OF )
) ss.:
COUNTY OF )
On the _______ day of ________________, 2000, before me personally came
_________________________, to me known, who, being by me duly sworn, did depose
and say that he is _________________ of United Dominion Holdings, Inc., one of
the corporations described in and which executed the foregoing Indenture; that
he knows the seal of said corporation; that the seal affixed to said Indenture
is such corporate seal; that it was so affixed by the authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
--------------------------------------------------
Notary Public My Commission Expires:
--------------
<PAGE> 95
STATE OF )
) ss.:
COUNTY OF )
On the _______ day of ________________, 2000, before me personally came
_________________________, to me known, who, being by me duly sworn, did depose
and say that he is _________________ of United Dominion Holdings, Inc., one of
the corporations described in and which executed the foregoing Indenture; that
he knows the seal of said corporation; that the seal affixed to said Indenture
is such corporate seal; that it was so affixed by the authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
--------------------------------------------------
Notary Public My Commission Expires:
--------------
--------------------------------------------------
Notary Public My Commission Expires:
--------------
<PAGE> 1
EXHIBIT 5.01
ROBINSON, BRADSHAW & HINSON, P.A.
ATTORNEYS AT LAW
SOUTH CAROLINA OFFICE
101 NORTH TRYON STREET, SUITE 1900 THE GUARDIAN BUILDING
CHARLOTTE, NORTH CAROLINA 28246 ONE LAW PLACE - SUITE 600
TELEPHONE (704) 377-2536 P.O. DRAWER 12070
FAX (704) 378-4000 ROCK HILL, S.C. 29731
TELEPHONE (803) 325-2900
FAX (803) 325-2929
January 18, 2000
United Dominion Industries, Inc.
United Dominion Industries Limited
United Dominion Holdings, Inc.
2300 One First Union Center
301 South College Street
Charlotte, North Carolina 28202-6039
Re: Registration Statement on Form F-3
Ladies and Gentlemen:
We refer to the Registration Statement on Form F-3 (the "Registration
Statement") of United Dominion Industries, Inc., a Delaware corporation
(hereinafter referred to as the "Issuer"), United Dominion Industries Limited, a
corporation organized under the laws of Canada ("Limited"), and United Dominion
Holdings, Inc., a Delaware corporation (hereinafter referred to as the
"Holdings"; Limited and Holdings are collectively referred to herein as the
"Guarantors"), filed with the Securities and Exchange Commission on the date
hereof for the purpose of registering under the Securities Act of 1933, as
amended (the "Act"), up to $200,000,000 of guaranteed debt securities ("Debt
Securities") for issuance by the Issuer from time to time in one or more series
to be fully and unconditionally guaranteed by each of the Guarantors. Each
guarantee by Holdings is referred to herein as a "Holdings Guarantee," and each
guarantee by Limited is referred to herein as a "Limited Guarantee."
For purposes of rendering the opinions expressed herein, we have
examined and relied on the Issuer's certificate of incorporation, as amended,
and bylaws, Holdings' certificate of incorporation and bylaws, the form of
Indenture (the "Indenture") between the Issuer, the Guarantors and First Union
National Bank, as trustee, which has been filed as an exhibit to the
Registration Statement, records of proceedings of the board of directors of the
Issuer, Holdings and Limited and other records of the Issuer, Holdings and
Limited, together with applicable certificates of public officials and other
documents, that we have deemed necessary to reach the opinions expressed herein.
In making the foregoing examinations, we have assumed the genuineness of all
signatures on original documents, the authenticity, accuracy and completeness of
all documents submitted to us as originals, and the conformity to original
documents of all
<PAGE> 2
United Dominion Industries, Inc.
United Dominion Industries Limited
United Dominion Holdings, Inc.
January 18, 2000
Page 2
copies submitted to us. We are familiar with the proceedings taken and proposed
to be taken by the Issuer in connection with the authorization and issuance of
the Debt Securities, by Holdings with respect to the authorization and
endorsement of a Holdings Guarantee and by Limited with respect to the
endorsement of a Limited Guarantee, and for purposes of this opinion have
assumed that such proceedings will be timely completed.
Based solely upon the foregoing, subject to the comments and exceptions
hereinafter stated, it is our opinion that: Upon the taking of appropriate
corporate action by the Issuer, Holdings and Limited; the due execution and
delivery by the parties thereto of the Indenture and each amendment of or
supplement to the Indenture, assuming that the Indenture is consistent with the
form thereof filed as an exhibit to the Registration Statement; the
qualification of the Indenture under the Trust Indenture Act of 1939; the due
execution of the Debt Securities on behalf of the Issuer; the due endorsement of
the Holdings Guarantees by Holdings; the due endorsement of the Limited
Guarantees by Limited; the due authentication of the Debt Securities, the
Holdings Guarantees and the Limited Guarantees by the relevant Trustee under the
Indenture; and the sale and delivery at and receipt of the price, and in
accordance with, the terms set forth in the Registration Statement and the
supplement or supplements to the prospectus included therein, the Debt
Securities will be duly and validly authorized, legally issued and will be valid
and binding obligations of the Issuer, entitled to the benefits of the
Indenture, the Holdings Guarantees will be duly and validly authorized, legally
issued and will be the valid and binding obligations of Holdings, entitled to
the benefits of the Indenture, and the Limited Guarantees will be duly and
validly authorized, legally issued and will be valid and binding obligations of
Limited, entitled to the benefits of the Indenture, except, in each case, as
such enforceability may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws affecting creditors'
rights generally and subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
In providing the foregoing opinion, we have relied upon the opinion of
Stikeman Elliott as to the due authorization by Limited of the Indenture and the
Limited Guarantees, which opinion is included as Exhibit 5.02 to the
Registration Statement (the "Stikeman Opinion").
The opinions expressed herein are contingent upon the Registration
Statement, as may be amended, becoming effective under the Act, the Issuer's
certificate of incorporation, as amended, and bylaws, Holdings' certificate of
incorporation and bylaws and Limited's articles of incorporation, as amended,
and bylaws, not being further amended prior to the issuance of the Debt
Securities.
For purposes of rendering the opinions expressed herein, we have
assumed that the laws of the State of New York, which have been chosen as the
governing laws under the Indenture, are the same as the laws of the State of
North Carolina, and we express no opinion as to the laws of
<PAGE> 3
United Dominion Industries, Inc.
United Dominion Industries Limited
United Dominion Holdings, Inc.
January 18, 2000
Page 3
any jurisdiction other than the laws of the State of North Carolina, the
corporate laws of the State of Delaware, the federal laws of the United States
of America, and the corporate laws of Canada, in each case as in effect on the
date hereof. To the extent any matter addressed herein is governed by the laws
of Canada, we have given our opinion with respect to such matter solely in
reliance on the Stikeman Opinion.
We hereby consent to the filing of this opinion as an exhibit to said
Registration Statement and to being named therein and in the prospectus that
constitutes a part thereof as attorneys who will pass upon certain legal matters
in connection with the validity of the guaranteed debt securities, the Holdings
Guarantees and the Limited Guarantees. In giving such consent, we do not hereby
admit we are in the category of persons whose consent is required under Section
7 of the Act.
Very truly yours,
ROBINSON, BRADSHAW & HINSON, P.A.
/s/ Stephen M. Lynch
Stephen M. Lynch
<PAGE> 1
EXHIBIT 5.02
[Letterhead of Stikeman, Elliott]
DIRECT DIAL : (416) 869-5221
DIRECT FAX : (416) 861-0445
E-MAIL : [email protected]
January 18, 2000
United Dominion Industries Limited
2300 One First Union Center
301 South College Street
Charlotte, North Carolina 28202-6039
Dear Sirs:
RE: REGISTRATION STATEMENT ON FORM F-3
We refer to the Registration Statement on Form F-3 (the "REGISTRATION
STATEMENT") of United Dominion Industries, Inc., a Delaware corporation (the
"ISSUER"), United Dominion Industries Limited, a Canadian corporation
("LIMITED"), and United Dominion Holdings, Inc., a Delaware corporation
("HOLDINGS", and together with Limited are, collectively, the "GUARANTORS"),
filed with the Securities and Exchange Commission on the date hereof for the
purpose of registering under the Securities Act of 1933, as amended (the "ACT"),
up to $200,000,000 of guaranteed debt securities ("DEBT SECURITIES") for
issuance by the Issuer from time to time in one or more series to be fully and
unconditionally guaranteed by each of the Guarantors. Each guarantee by Limited
is referred to herein as a "LIMITED GUARANTEE."
For the purpose of rendering the opinion expressed herein, we have
examined and relied on Limited's articles of incorporation, as amended,
Limited's bylaws, the form of Indenture (the "INDENTURE") between the Issuer,
the Guarantors and First Union National Bank, as trustee, which has been filed
as an exhibit to the Registration Statement, records of proceedings of the board
of directors of Limited and other records of Limited, together with applicable
certificates of public officials and other documents, that we have deemed
necessary to reach the opinions expressed herein. In making the foregoing
examinations, we have assumed the genuineness of all signatures on
<PAGE> 2
Stikeman, Elliott Opinion.
January 18, 2000
Page 2 of 2
- ---------------------------------
original documents, the authenticity, accuracy and completeness of all documents
submitted to us as originals, and the conformity to original documents of all
copies submitted to us. We are familiar with the proceedings taken and proposed
to be taken by Limited in connection with the authorization of the Indenture and
a Limited Guarantee.
Based solely upon the foregoing, subject to the comments and exceptions
hereinafter stated, it is our opinion that the Limited Guarantees have been
validly authorized.
The opinions expressed herein are contingent upon the Registration
Statement, as may be amended, becoming effective under the Act and Limited's
articles of incorporation, as amended, and Limited's bylaws not being further
amended prior to the issuance of the Debt Securities.
We express no opinion as to the laws of any jurisdiction other than the
laws of the Province of Ontario and the federal laws of Canada applicable
therein, in each case as in effect on the date hereof.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to being named therein and in the prospectus that
constitutes a part thereof as attorneys who will pass upon certain legal matters
in connection with the authorization of the Limited Guarantees. In giving such
consent, we do not hereby admit we are in the category of persons whose consent
is required under Section 7 of the Act.
This opinion is being delivered to you and, except as noted below, the
opinion expressed herein is solely for your benefit in connection with the
transactions contemplated hereby, and this opinion may not be relied upon by any
other person or for any other purpose and is not to be used, circulated, quoted
or otherwise referred to or disclosed, in whole or in part, for any purpose
without our prior written consent. A copy of this opinion letter is being
provided to Robinson, Bradshaw & Hinson, P.A., counsel assisting you in the
preparation of the Registration Statement, with the understanding that Robinson,
Bradshaw & Hinson, P.A. will rely upon this opinion letter in providing its
opinion to be filed as an exhibit to the Registration Statement.
Yours truly,
/s/ Stikeman, Elliott
cc: Robinson, Bradshaw & Hinson, P.A.
<PAGE> 1
EXHIBIT 12.01
RATIO OF EARNINGS TO FIXED CHARGES
RATIO OF EARNINGS TO FIXED CHARGES
----------------------------------
The following table shows the calculation of the consolidated ratio of
earnings to fixed charges of United Dominion Industries Limited and its
subsidiaries for each of the periods indicated:
<TABLE>
<CAPTION>
Years Ended: 9 mos.
-------------------------------------------------------- ended
1994 1995 1996 1997 1998 1999
---------- --------- --------- ---------- --------- ----------
<S> <C> <C> <C> <C> <C> <C>
EARNINGS
Income from cont ops before inc taxes 77,588 98,965 118,857 133,728 122,557 104,985
Fixed charges (less preferred dividends) 34,958 33,487 29,564 32,192 45,175 35,393
---------- --------- --------- ---------- --------- ----------
112,546 132,452 148,421 165,920 167,732 140,378
========== ========= ========= ========== ========= ==========
FIXED CHARGES
Total interest expense 26,306 27,757 23,795 26,198 38,866 30,489
Estimate of interest expense within rental exp. 7,982 5,450 5,456 5,679 5,935 4,639
Amortization of debt issue costs 670 280 313 315 374 265
Preferred stock dividends (tax effected) 8,760 4,403 -- -- -- --
---------- --------- --------- ---------- --------- ----------
43,718 37,890 29,564 32,192 45,175 35,393
========== ========= ========= ========== ========= ==========
RATIO OF EARNINGS TO FIXED CHARGES 2.57 3.50 5.02 5.15 3.71 3.97
========== ========= ========= ========== ========= ==========
</TABLE>
RATIO OF EARNINGS TO FIXED CHARGES
----------------------------------
(UNITED STATES GAAP RECONCILIATION)
The following table shows the consolidated ratio of earnings to fixed
charges of United Dominion Industries Limited and its subsidiaries for each of
the periods indicated, as reconciled to United States generally accepted
accounting principles:
<TABLE>
<CAPTION>
Years Ended: 9 mos.
-------------------------------------------------------- ended
1994 1995 1996 1997 1998 1999
---------- --------- --------- ---------- --------- ----------
<S> <C> <C> <C> <C> <C> <C>
EARNINGS
Income from cont ops before inc taxes 73,663 94,220 114,640 129,455 118,309 100,910
Fixed charges (less preferred dividends) 34,958 33,487 29,564 32,192 45,175 35,393
---------- --------- --------- ---------- --------- ----------
108,621 127,707 144,204 161,647 163,484 136,303
========== ========= ========= ========== ========= ==========
FIXED CHARGES
Total interest expense 26,306 27,757 23,795 26,198 38,866 30,489
Estimate of interest expense within rental exp. 7,982 5,450 5,456 5,679 5,935 4,639
Amortization of debt issue costs 670 280 313 315 374 265
Preferred stock dividends (tax effected) 8,760 4,403 -- -- -- --
---------- --------- --------- ---------- --------- ----------
43,718 37,890 29,564 32,192 45,175 35,393
========== ========= ========= ========== ========= ==========
RATIO OF EARNINGS TO FIXED CHARGES 2.48 3.37 4.88 5.02 3.62 3.85
========== ========= ========= ========== ========= ==========
</TABLE>
<PAGE> 1
Exhibit 23.01
[Letterhead of KPMG LLP]
ACCOUNTANTS' CONSENT
The Shareholders
United Dominion Industries Limited:
We consent to the incorporation by reference herein of our report dated February
5, 1999, relating to the consolidated statements of financial position of United
Dominion Industries Limited as at December 31, 1998, and 1997, and the related
consolidated statements of income, cash flows and changes in shareholders'
equity for each of the years in the three-year period ended December 31, 1998,
and related schedule, which report appears in the Form 8-K dated January 18,
2000 of United Dominion Industries Limited.
Our report dated February 5, 1999, contains an explanatory paragraph that states
that the Company's consolidated financial statements as at December 31, 1998 and
1997 and for the three-year period ended December 31, 1998, were previously
prepared on the basis of accounting for income taxes in conformity with Canadian
Institute of Chartered Accountants Handbook Section 3470 CORPORATE INCOME TAXES.
The Company changed its method of accounting for income taxes through the
adoption of Canadian Institute of Chartered Accountants Handbook Section 3465
INCOME TAXES at the beginning of 1999 and has applied the provisions of Section
3465 retroactively. Consequently, the Company's consolidated financial
statements referred to above have been restated to conform with this adoption.
We also consent to the reference to our firm under the heading "Experts" in the
prospectus.
KPMG LLP
/s/ KPMG LLP
Chartered Accountants
Toronto, Canada
January 17, 2000
<PAGE> 1
Exhibit 24.01
POWER OF ATTORNEY
THE UNDERSIGNED Chairman of the Board of Directors and Chief Executive
Officer of each of United Dominion Industries Limited ("UDIL"), United Dominion
Holdings, Inc. ("UDHI") and United Dominion Industries, Inc. ("UDII") hereby
constitutes and appoints Glenn A. Eisenberg, Richard L. Magee and Thomas J.
Snyder, and each of them, with full power to act without the other and with full
power of substitution and resubstitution, his true and lawful attorneys-in-fact
and agents, for him and in his name, place, and stead, in any and all
capacities, to sign on his behalf a Registration Statement on Form F-3 pursuant
to the Securities Act of 1933, as amended (the "Act"), for the purpose of
registering up to $200,000,000 of guaranteed debt securities of UDII,
unconditionally guaranteed by UDIL and UDHI, and any and all amendments
(including post-effective amendments and amendments thereto) to such
registration statement and any related registration statement (and any
amendments thereto) filed pursuant to Rule 462(b) under the Act, and to file the
same, with all exhibits thereto and other documents in connection therewith,
with the Commission, and grants unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises as fully as to all
intents and purposes as he might or could do in person, and hereby ratifies and
confirms all that such attorneys-in-fact or agents, or any of them, or their
substitutes shall lawfully do or cause to be done by virtue hereof.
EXECUTED on the 24th day of October, 1999.
/s/ WILLIAM R. HOLLAND
----------------------------
William R. Holland
<PAGE> 1
Exhibit 24.02
POWER OF ATTORNEY
THE UNDERSIGNED Senior Vice President and Chief Financial Officer of
each of United Dominion Industries Limited ("UDIL"), United Dominion Industries,
Inc. ("UDII") and United Dominion Holdings, Inc. ("UDHI"), hereby constitutes
and appoints Glenn A. Eisenberg, Richard L. Magee and Thomas J. Snyder, and each
of them, with full power to act without the other and with full power of
substitution and resubstitution, his true and lawful attorneys-in-fact and
agents, for him and in his name, place, and stead, in any and all capacities, to
sign on his behalf a Registration Statement on Form F-3 pursuant to the
Securities Act of 1933, as amended (the "Act"), for the purpose of registering
up to $200,000,000 of guaranteed debt securities of UDII, unconditionally
guaranteed by UDIL and UDHI, and any and all amendments (including
post-effective amendments and amendments thereto) to such registration statement
and any related registration statement (and any amendments thereto) filed
pursuant to Rule 462(b) under the Act, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the Commission, and
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises as fully as to all intents and purposes as
he might or could do in person, and hereby ratifies and confirms all that such
attorneys-in-fact or agents, or any of them, or their substitutes shall lawfully
do or cause to be done by virtue hereof.
EXECUTED on the 12th day of January, 2000.
/s/ WILLIAM DRIES
----------------------------
William Dries
<PAGE> 1
Exhibit 24.03
POWER OF ATTORNEY
THE UNDERSIGNED Vice President and Chief Accounting Officer of United
Dominion Industries Limited ("UDIL"), United Dominion Industries, Inc. ("UDII")
and United Dominion Holdings, Inc. ("UDHI") hereby constitutes and appoints
Glenn A. Eisenberg, Richard L. Magee and Thomas J. Snyder, and each of them,
with full power to act without the other and with full power of substitution and
resubstitution, his true and lawful attorneys-in-fact and agents, for him and in
his name, place, and stead, in any and all capacities, to sign on his behalf a
Registration Statement on Form F-3 pursuant to the Securities Act of 1933, as
amended (the "Act"), for the purpose of registering up to $200,000,000 of
guaranteed debt securities of UDII, unconditionally guaranteed by UDIL and UDHI,
and any and all amendments (including post-effective amendments and amendments
thereto) to such registration statement and any related registration statement
(and any amendments thereto) filed pursuant to Rule 462(b) under the Act, and to
file the same, with all exhibits thereto and other documents in connection
therewith, with the Commission, and grants unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the premises
as fully as to all intents and purposes as he might or could do in person, and
hereby ratifies and confirms all that such attorneys-in-fact or agents, or any
of them, or their substitutes shall lawfully do or cause to be done by virtue
hereof.
EXECUTED on the 12th day of January, 2000.
/s/ C. THEODORE LEINBACH III
----------------------------
C. Theodore Leinbach III
<PAGE> 1
Exhibit 24.04
POWER OF ATTORNEY
THE UNDERSIGNED director of United Dominion Industries Limited (the
"Company") hereby constitutes and appoints Glenn A. Eisenberg, Richard L. Magee
and Thomas J. Snyder, and each of them, with full power to act without the other
and with full power of substitution and resubstitution, his true and lawful
attorneys-in-fact and agents, for him and in his name, place, and stead, in any
and all capacities, to sign on his behalf a Registration Statement on Form F-3
pursuant to the Securities Act of 1933, as amended (the "Act"), for the purpose
of registering up to $200,000,000 of guaranteed debt securities of United
Dominion Industries, Inc., unconditionally guaranteed by the Company and United
Dominion Holdings, Inc., and any and all amendments (including post-effective
amendments and amendments thereto) to such registration statement and any
related registration statement (and any amendments thereto) filed pursuant to
Rule 462(b) under the Act, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Commission, and grants unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises as fully as to all intents and purposes as he might or
could do in person, and hereby ratifies and confirms all that such
attorneys-in-fact or agents, or any of them, or their substitutes shall lawfully
do or cause to be done by virtue hereof.
EXECUTED on the 24th day of October, 1999.
/s/ DONALD N. BOYCE
----------------------------
Donald N. Boyce
<PAGE> 1
Exhibit 24.05
POWER OF ATTORNEY
THE UNDERSIGNED director of United Dominion Industries Limited (the
"Company") hereby constitutes and appoints Glenn A. Eisenberg, Richard L. Magee
and Thomas J. Snyder, and each of them, with full power to act without the other
and with full power of substitution and resubstitution, his true and lawful
attorneys-in-fact and agents, for him and in his name, place, and stead, in any
and all capacities, to sign on his behalf a Registration Statement on Form F-3
pursuant to the Securities Act of 1933, as amended (the "Act"), for the purpose
of registering up to $200,000,000 of guaranteed debt securities of United
Dominion Industries, Inc., unconditionally guaranteed by the Company and United
Dominion Holdings, Inc., and any and all amendments (including post-effective
amendments and amendments thereto) to such registration statement and any
related registration statement (and any amendments thereto) filed pursuant to
Rule 462(b) under the Act, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Commission, and grants unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises as fully as to all intents and purposes as he might or
could do in person, and hereby ratifies and confirms all that such
attorneys-in-fact or agents, or any of them, or their substitutes shall lawfully
do or cause to be done by virtue hereof.
EXECUTED on the 24th day of October, 1999.
/s/ HERMANN BUERGER
----------------------------
Hermann Buerger
<PAGE> 1
Exhibit 24.06
POWER OF ATTORNEY
THE UNDERSIGNED director of United Dominion Industries Limited (the
"Company") hereby constitutes and appoints Glenn A. Eisenberg, Richard L. Magee
and Thomas J. Snyder, and each of them, with full power to act without the other
and with full power of substitution and resubstitution, his true and lawful
attorneys-in-fact and agents, for him and in his name, place, and stead, in any
and all capacities, to sign on his behalf a Registration Statement on Form F-3
pursuant to the Securities Act of 1933, as amended (the "Act"), for the purpose
of registering up to $200,000,000 of guaranteed debt securities of United
Dominion Industries, Inc., unconditionally guaranteed by the Company and United
Dominion Holdings, Inc., and any and all amendments (including post-effective
amendments and amendments thereto) to such registration statement and any
related registration statement (and any amendments thereto) filed pursuant to
Rule 462(b) under the Act, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Commission, and grants unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises as fully as to all intents and purposes as he might or
could do in person, and hereby ratifies and confirms all that such
attorneys-in-fact or agents, or any of them, or their substitutes shall lawfully
do or cause to be done by virtue hereof.
EXECUTED on the 24th day of October, 1999.
/s/ JAMES E. COURTNEY
----------------------------
James E. Courtney
<PAGE> 1
Exhibit 24.07
POWER OF ATTORNEY
THE UNDERSIGNED director of United Dominion Industries Limited (the
"Company") hereby constitutes and appoints Glenn A. Eisenberg, Richard L. Magee
and Thomas J. Snyder, and each of them, with full power to act without the other
and with full power of substitution and resubstitution, his true and lawful
attorneys-in-fact and agents, for him and in his name, place, and stead, in any
and all capacities, to sign on his behalf a Registration Statement on Form F-3
pursuant to the Securities Act of 1933, as amended (the "Act"), for the purpose
of registering up to $200,000,000 of guaranteed debt securities of United
Dominion Industries, Inc., unconditionally guaranteed by the Company and United
Dominion Holdings, Inc., and any and all amendments (including post-effective
amendments and amendments thereto) to such registration statement and any
related registration statement (and any amendments thereto) filed pursuant to
Rule 462(b) under the Act, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Commission, and grants unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises as fully as to all intents and purposes as he might or
could do in person, and hereby ratifies and confirms all that such
attorneys-in-fact or agents, or any of them, or their substitutes shall lawfully
do or cause to be done by virtue hereof.
EXECUTED on the 24th day of October, 1999.
/s/ PETER A. CROSSGROVE
----------------------------
Peter A. Crossgrove
<PAGE> 1
Exhibit 24.08
POWER OF ATTORNEY
THE UNDERSIGNED director of United Dominion Industries Limited (the
"Company") hereby constitutes and appoints Glenn A. Eisenberg, Richard L. Magee
and Thomas J. Snyder, and each of them, with full power to act without the other
and with full power of substitution and resubstitution, his true and lawful
attorneys-in-fact and agents, for him and in his name, place, and stead, in any
and all capacities, to sign on his behalf a Registration Statement on Form F-3
pursuant to the Securities Act of 1933, as amended (the "Act"), for the purpose
of registering up to $200,000,000 of guaranteed debt securities of United
Dominion Industries, Inc., unconditionally guaranteed by the Company and United
Dominion Holdings, Inc., and any and all amendments (including post-effective
amendments and amendments thereto) to such registration statement and any
related registration statement (and any amendments thereto) filed pursuant to
Rule 462(b) under the Act, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Commission, and grants unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises as fully as to all intents and purposes as he might or
could do in person, and hereby ratifies and confirms all that such
attorneys-in-fact or agents, or any of them, or their substitutes shall lawfully
do or cause to be done by virtue hereof.
EXECUTED on the 24th day of October, 1999.
/s/ JERE A. DRUMMOND
----------------------------
Jere A. Drummond
<PAGE> 1
Exhibit 24.09
POWER OF ATTORNEY
THE UNDERSIGNED director of United Dominion Industries Limited (the
"Company") hereby constitutes and appoints Glenn A. Eisenberg, Richard L. Magee
and Thomas J. Snyder, and each of them, with full power to act without the other
and with full power of substitution and resubstitution, his true and lawful
attorneys-in-fact and agents, for him and in his name, place, and stead, in any
and all capacities, to sign on his behalf a Registration Statement on Form F-3
pursuant to the Securities Act of 1933, as amended (the "Act"), for the purpose
of registering up to $200,000,000 of guaranteed debt securities of United
Dominion Industries, Inc., unconditionally guaranteed by the Company and United
Dominion Holdings, Inc., and any and all amendments (including post-effective
amendments and amendments thereto) to such registration statement and any
related registration statement (and any amendments thereto) filed pursuant to
Rule 462(b) under the Act, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Commission, and grants unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises as fully as to all intents and purposes as he might or
could do in person, and hereby ratifies and confirms all that such
attorneys-in-fact or agents, or any of them, or their substitutes shall lawfully
do or cause to be done by virtue hereof.
EXECUTED on the 24th day of October, 1999.
/s/ R. STUART DICKSON
----------------------------
R. Stuart Dickson
<PAGE> 1
Exhibit 24.10
POWER OF ATTORNEY
THE UNDERSIGNED director of United Dominion Industries Limited (the
"Company") hereby constitutes and appoints Glenn A. Eisenberg, Richard L. Magee
and Thomas J. Snyder, and each of them, with full power to act without the other
and with full power of substitution and resubstitution, his true and lawful
attorneys-in-fact and agents, for him and in his name, place, and stead, in any
and all capacities, to sign on his behalf a Registration Statement on Form F-3
pursuant to the Securities Act of 1933, as amended (the "Act"), for the purpose
of registering up to $200,000,000 of guaranteed debt securities of United
Dominion Industries, Inc., unconditionally guaranteed by the Company and United
Dominion Holdings, Inc., and any and all amendments (including post-effective
amendments and amendments thereto) to such registration statement and any
related registration statement (and any amendments thereto) filed pursuant to
Rule 462(b) under the Act, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Commission, and grants unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises as fully as to all intents and purposes as he might or
could do in person, and hereby ratifies and confirms all that such
attorneys-in-fact or agents, or any of them, or their substitutes shall lawfully
do or cause to be done by virtue hereof.
EXECUTED on the 24th day of October, 1999.
/s/ JAMES A. GRANT
----------------------------
James A. Grant
<PAGE> 1
Exhibit 24.11
POWER OF ATTORNEY
THE UNDERSIGNED director of United Dominion Industries Limited (the
"Company") hereby constitutes and appoints Glenn A. Eisenberg, Richard L. Magee
and Thomas J. Snyder, and each of them, with full power to act without the other
and with full power of substitution and resubstitution, his true and lawful
attorneys-in-fact and agents, for him and in his name, place, and stead, in any
and all capacities, to sign on his behalf a Registration Statement on Form F-3
pursuant to the Securities Act of 1933, as amended (the "Act"), for the purpose
of registering up to $200,000,000 of guaranteed debt securities of United
Dominion Industries, Inc., unconditionally guaranteed by the Company and United
Dominion Holdings, Inc., and any and all amendments (including post-effective
amendments and amendments thereto) to such registration statement and any
related registration statement (and any amendments thereto) filed pursuant to
Rule 462(b) under the Act, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Commission, and grants unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises as fully as to all intents and purposes as he might or
could do in person, and hereby ratifies and confirms all that such
attorneys-in-fact or agents, or any of them, or their substitutes shall lawfully
do or cause to be done by virtue hereof.
EXECUTED on the 24th day of October, 1999.
/s/ JOHN T. MAYBERRY
----------------------------
John T. Mayberry
<PAGE> 1
Exhibit 24.12
POWER OF ATTORNEY
THE UNDERSIGNED director of United Dominion Industries Limited (the
"Company") hereby constitutes and appoints Glenn A. Eisenberg, Richard L. Magee
and Thomas J. Snyder, and each of them, with full power to act without the other
and with full power of substitution and resubstitution, his true and lawful
attorneys-in-fact and agents, for him and in his name, place, and stead, in any
and all capacities, to sign on his behalf a Registration Statement on Form F-3
pursuant to the Securities Act of 1933, as amended (the "Act"), for the purpose
of registering up to $200,000,000 of guaranteed debt securities of United
Dominion Industries, Inc., unconditionally guaranteed by the Company and United
Dominion Holdings, Inc., and any and all amendments (including post-effective
amendments and amendments thereto) to such registration statement and any
related registration statement (and any amendments thereto) filed pursuant to
Rule 462(b) under the Act, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Commission, and grants unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises as fully as to all intents and purposes as he might or
could do in person, and hereby ratifies and confirms all that such
attorneys-in-fact or agents, or any of them, or their substitutes shall lawfully
do or cause to be done by virtue hereof.
EXECUTED on the 18th day of November, 1999.
/s/ HARRY A. NURKIN
----------------------------
Dr. Harry A. Nurkin
<PAGE> 1
Exhibit 24.13
POWER OF ATTORNEY
THE UNDERSIGNED director of United Dominion Industries Limited (the
"Company") hereby constitutes and appoints Glenn A. Eisenberg, Richard L. Magee
and Thomas J. Snyder, and each of them, with full power to act without the other
and with full power of substitution and resubstitution, his true and lawful
attorneys-in-fact and agents, for him and in his name, place, and stead, in any
and all capacities, to sign on his behalf a Registration Statement on Form F-3
pursuant to the Securities Act of 1933, as amended (the "Act"), for the purpose
of registering up to $200,000,000 of guaranteed debt securities of United
Dominion Industries, Inc., unconditionally guaranteed by the Company and United
Dominion Holdings, Inc., and any and all amendments (including post-effective
amendments and amendments thereto) to such registration statement and any
related registration statement (and any amendments thereto) filed pursuant to
Rule 462(b) under the Act, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Commission, and grants unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises as fully as to all intents and purposes as he might or
could do in person, and hereby ratifies and confirms all that such
attorneys-in-fact or agents, or any of them, or their substitutes shall lawfully
do or cause to be done by virtue hereof.
EXECUTED on the 24th day of October, 1999.
/s/ RUSSELL C. KING, JR.
----------------------------
Russell C. King, Jr.
<PAGE> 1
Exhibit 24.14
POWER OF ATTORNEY
THE UNDERSIGNED director of each of United Dominion Industries Limited
("UDIL"), United Dominion Holdings, Inc. ("UDHI") and United Dominion
Industries, Inc. ("UDII") hereby constitutes and appoints Glenn A. Eisenberg,
Richard L. Magee and Thomas J. Snyder, and each of them, with full power to act
without the other and with full power of substitution and resubstitution, his
true and lawful attorneys-in-fact and agents, for him and in his name, place,
and stead, in any and all capacities, to sign on his behalf a Registration
Statement on Form F-3 pursuant to the Securities Act of 1933, as amended (the
"Act"), for the purpose of registering up to $200,000,000 of guaranteed debt
securities of UDII, unconditionally guaranteed by UDIL and UDHI, and any and all
amendments (including post-effective amendments and amendments thereto) to such
registration statement and any related registration statement (and any
amendments thereto) filed pursuant to Rule 462(b) under the Act, and to file the
same, with all exhibits thereto and other documents in connection therewith,
with the Commission, and grants unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises as fully as to all
intents and purposes as he might or could do in person, and hereby ratifies and
confirms all that such attorneys-in-fact or agents, or any of them, or their
substitutes shall lawfully do or cause to be done by virtue hereof.
EXECUTED on the 24th day of October, 1999.
/s/ DALTON D. RUFFIN
----------------------------
Dalton D. Ruffin
<PAGE> 1
Exhibit 24.15
POWER OF ATTORNEY
THE UNDERSIGNED director of each of United Dominion Industries Limited
("UDIL"), United Dominion Holdings, Inc. ("UDHI") and United Dominion
Industries, Inc. ("UDII") hereby constitutes and appoints Glenn A. Eisenberg,
Richard L. Magee and Thomas J. Snyder, and each of them, with full power to act
without the other and with full power of substitution and resubstitution, his
true and lawful attorneys-in-fact and agents, for him and in his name, place,
and stead, in any and all capacities, to sign on his behalf a Registration
Statement on Form F-3 pursuant to the Securities Act of 1933, as amended (the
"Act"), for the purpose of registering up to $200,000,000 of guaranteed debt
securities of UDII, unconditionally guaranteed by UDIL and UDHI, and any and all
amendments (including post-effective amendments and amendments thereto) to such
registration statement and any related registration statement (and any
amendments thereto) filed pursuant to Rule 462(b) under the Act, and to file the
same, with all exhibits thereto and other documents in connection therewith,
with the Commission, and grants unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises as fully as to all
intents and purposes as he might or could do in person, and hereby ratifies and
confirms all that such attorneys-in-fact or agents, or any of them, or their
substitutes shall lawfully do or cause to be done by virtue hereof.
EXECUTED on the 24th day of October, 1999.
/s/ WILLIAM W. STINSON
----------------------------
William W. Stinson
<PAGE> 1
Exhibit 24.16
POWER OF ATTORNEY
THE UNDERSIGNED director of United Dominion Industries Limited (the
"Company") hereby constitutes and appoints Glenn A. Eisenberg, Richard L. Magee
and Thomas J. Snyder, and each of them, with full power to act without the other
and with full power of substitution and resubstitution, his true and lawful
attorneys-in-fact and agents, for him and in his name, place, and stead, in any
and all capacities, to sign on his behalf a Registration Statement on Form F-3
pursuant to the Securities Act of 1933, as amended (the "Act"), for the purpose
of registering up to $200,000,000 of guaranteed debt securities of United
Dominion Industries, Inc., unconditionally guaranteed by the Company and United
Dominion Holdings, Inc., and any and all amendments (including post-effective
amendments and amendments thereto) to such registration statement and any
related registration statement (and any amendments thereto) filed pursuant to
Rule 462(b) under the Act, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Commission, and grants unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises as fully as to all intents and purposes as he might or
could do in person, and hereby ratifies and confirms all that such
attorneys-in-fact or agents, or any of them, or their substitutes shall lawfully
do or cause to be done by virtue hereof.
EXECUTED on the 24th day of October, 1999.
/s/ GEORGE S. TAYLOR
----------------------------
George S. Taylor
<PAGE> 1
Exhibit 25.01
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED, OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
----------
FIRST UNION NATIONAL BANK
(Exact name of trustee as specified in its charter)
United States National Bank 22-1147033
(State of incorporation if (I.R.S. employer
not a national bank) identification no.)
First Union National Bank
401 South Tryon Street, 12th Floor
Charlotte, North Carolina 28288-1179
(Address of principal (Zip Code)
executive offices)
SAME AS ABOVE
-------------
(Name, address and telephone number, including
area code, of trustee's agent for service)
United Dominion Industries, Inc.
United Dominion Industries Limited
United Dominion Holdings, Inc
(Exact names of obligors as specified in its charter)
Delaware
Canada
Delaware
(State or other jurisdiction of incorporation or organization)
98-0013789
98-0125322
98-0013789
(I.R.S. employer identification no.)
Richard L. Magee
United Dominion Industries, Inc.
United Dominion Industries Limited
United Dominion Holdings, Inc.
2300 One First Union Center
301 South College Street
Charlotte, NC 28202-6039
(Address, including zip code, of principal executive offices)
--------------------
Guaranteed Debt Securities
(Title of the indenture securities)
------------------------------------------------
<PAGE> 2
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
-----------------------------------------------------------------
Federal Reserve Bank of Richmond, Richmond, VA
Comptroller of the Currency, Washington, D.C.
Securities and Exchange Commission
Division of Market Regulation, Washington, D.C.
Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust
powers.
2. AFFILIATIONS WITH OBLIGORS AND UNDERWRITERS. If any obligor or any
underwriter for any obligor is an affiliate of the trustee, describe each such
affiliation.
None.
(See Note 1 on Page 4.)
Because none of the obligors is in default on any securities issued under
indentures under which the applicant is trustee, Items 3 through 15 are not
required herein.
16. LIST OF EXHIBITS.
All exhibits identified below are filed as a part of this statement of
eligibility.
1. A copy of the Articles of Association of First Union National Bank as now in
effect, which contain the authority to commence business and a grant of powers
to exercise corporate trust powers.
2. A copy of the Certificate of Authority of First Union National Bank to
commence business, if not contained in the Articles of Association.
3. A copy of the authorization of First Union National Bank to exercise
corporate trust powers, if such authorization is not
<PAGE> 3
contained in the documents specified in exhibits (1) or (2) above.
4. A copy of the existing By-laws of First Union National Bank.
5. Inapplicable.
6. The consent of First Union National Bank required by Section 321(b) of the
Trust Indenture Act of 1939 is included at Page 4 of this Form T-1 Statement.
7. A copy of the latest report of condition of the trustee published pursuant to
law or to the requirements of its supervising or examining authority.
8. Inapplicable.
9. Inapplicable.
3
<PAGE> 4
NOTE
Note 1: Inasmuch as this Form T-1 is filed prior to the ascertainment
by the Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information. Item 2 may, however, be
considered correct unless amended by an amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, First Union National Bank, a national association
organized and existing under the laws of the United States of America, has duly
caused this statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Charlotte, and State of North Carolina, on the 13th day of January, 2000.
FIRST UNION NATIONAL BANK
(trustee)
By: /s/ James Long
----------------------
Its: Corporate Trust Officer
-------------------------
CONSENT OF TRUSTEE
Under section 321(b) of the Trust Indenture Act of 1939, as amended,
and in connection with the proposed issuance by United Dominion Industries,
Inc., and guarantee by United Dominion Industries Limited and United Dominion
Holdings, Inc of the Guaranteed Debt Securities, First Union National Bank as
the trustee herein named, hereby consents that reports of examinations of said
Trustee by Federal, State, Territorial or District authorities may be furnished
by such authorities to the Securities and Exchange Commission upon requests
therefor.
FIRST UNION NATIONAL BANK
By: /s/ James Long
----------------------
Title: Corporate Trust Officer
------------------------
Dated: January 18, 2000
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<PAGE> 5
Exhibit 1 to Form T-1
Charter No. 22693
FIRST UNION NATIONAL BANK
ARTICLES OF ASSOCIATION
-----------------------
(as restated effective February 26, 1998)
For the purpose of organizing an Association to carry on the business of banking
under the laws of the United States, the undersigned do enter into the following
Articles of Association:
FIRST. The title of this Association shall be FIRST UNION NATIONAL BANK.
SECOND. The main office of the Association shall be in Charlotte, County of
Mecklenburg, State of North Carolina. The general business of the Association
shall be conducted at its main office and its branches.
THIRD. The Board of Directors of this Association shall consist of not less
than five nor more than twenty-five directors, the exact number of directors
within such minimum and maximum limits to be fixed and determined from time to
time by resolution of a majority of the full Board of Directors or by resolution
of the shareholders at any annual or special meeting thereof. Unless otherwise
provided by the laws of the United States, any vacancy in the Board of Directors
for any reason, including an increase in the number thereof, may be filled by
action of the Board of Directors.
FOURTH. The annual meeting of the shareholders for the election of directors
and the transaction of whatever other business may be brought before said
meeting shall be held at the main office or such other place as the Board of
Directors may designate, on the day of each year specified therefor in the
By-Laws, but if no election is held on that day, it may be held on any
subsequent day according to the provisions of law; and all elections shall be
held according to such lawful regulations as may be prescribed by the Board of
Directors.
Nominations for election to the Board of Directors may be made by the Board
of Directors or by any stockholder of any outstanding class of capital stock of
the bank entitled to vote for election of directors. Nominations, other than
those made by or on behalf of the existing management of the bank, shall be made
in writing and shall be delivered or mailed to the President of the bank and to
the Comptroller of the Currency, Washington, D.C., not less than 14 days nor
more than 50 days prior to any meeting of stockholders called for the election
of directors, PROVIDED, HOWEVER, that if less than 21 days' notice of the
meeting is given to shareholders, such nomination shall be mailed or delivered
to the President of the Bank and to the Comptroller of the Currency not later
than the close of business on the seventh day following the day on which the
notice of meeting was mailed. Such notification shall contain the following
information to the extent known to the notifying shareholder:
<PAGE> 6
(a) the name and address of each proposed nominee; (b) the principal occupation
of each proposed nominee; (c) the total number of shares of capital stock of the
bank that will be voted for each proposed nominee; (d) the name and residence
address of the notifying shareholder; and (e) the number of shares of capital
stock of the bank owned by the notifying shareholder. Nominations not made in
accordance herewith may, in his discretion, be disregarded by the Chairman of
the meeting, and upon his instructions, the vote tellers may disregard all votes
cast for each such nominee.
FIFTH.
(a) GENERAL. The amount of capital stock of this Association shall be (I)
25,000,000 shares of common stock of the par value of twenty dollars ($20.00)
each (the "Common Stock") and (ii) 160,540 shares of preferred stock of the par
value of one dollar ($ 1. 00) each (the "Non-Cumulative Preferred Stock"),
having the rights, privileges and preferences set forth below, but said capital
stock may be increased or decreased from time to time in accordance with the
provisions of the laws of the United States.
(b) TERMS OF THE NON-CUMULATIVE PREFERRED STOCK.
1. GENERAL. Each share of Non-Cumulative Preferred Stock shall be identical
in all respects with the other shares of Non-Cumulative Preferred Stock. The
authorized number of shares of Non-Cumulative Preferred Stock may from time
to time be increased or decreased (but not below the number then
outstanding) by the Board of Directors. Shares of Non-Cumulative Preferred
Stock redeemed by the Association shall be canceled and shall revert to
authorized but unissued shares of Non-Cumulative Preferred Stock.
2. DIVIDENDS.
(a) GENERAL. The holders of Non-Cumulative Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of
Directors, but only out of funds legally available therefor,
non-cumulative cash dividends at the annual rate of $83.75 per share,
and no more, payable quarterly on the first days of December, March,
June and September, respectively, in each year with respect to the
quarterly dividend period (or portion thereof) ending on the day
preceding such respective dividend payment date, to shareholders of
record on the respective date, not exceeding fifty days preceding such
dividend payment date, fixed for that purpose by the Board of Directors
in advance of payment of each particular dividend. Notwithstanding the
foregoing, the cash dividend to be paid on the first dividend payment
date after the initial issuance of Non-Cumulative Preferred Stock and
on any dividend payment date with respect to a partial dividend period
shall be $83.75 per share multiplied by the fraction produced by
dividing the number of days since such initial issuance or in such
partial dividend period, as the case may be, by 360.
(b) NON-CUMULATIVE DIVIDENDS. Dividends on the shares of Non-cumulative
Stock shall not be cumulative and no rights shall accrue to the holders
of shares of Non-Cumulative Preferred Stock by reason of the fact that
the Association may fail to declare or pay dividends on the shares of
Non-Cumulative Preferred Stock in any amount in any quarterly dividend
period, whether or not the earnings of the Association in any quarterly
dividend period were sufficient to pay such dividends in whole or in
part, and the Association shall have no obligation at any time to pay
any such dividend.
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(c) PAYMENT OF DIVIDENDS. So long as any share of Non-Cumulative
Preferred Stock remains outstanding, no dividend whatsoever shall be
paid or declared and no distribution made on any junior stock other
than a dividend payable in junior stock, and no shares of junior stock
shall be purchased, redeemed or otherwise acquired for consideration by
the Association, directly or indirectly (other than as a result of a
reclassification of junior stock, or the exchange or conversion of one
junior stock for or into another junior stock, or other than through
the use of the proceeds of a substantially contemporaneous sale of
other junior stock), unless all dividends on all shares of
non-cumulative Preferred Stock and non-cumulative Preferred Stock
ranking on a parity as to dividends with the shares of Non-Cumulative
Preferred Stock for the most recent dividend period ended prior to the
date of such payment or declaration shall have been paid in full and
all dividends on all shares of cumulative Preferred Stock ranking on a
parity as to dividends with the shares of Non-Cumulative Stock
(notwithstanding that dividends on such stock are cumulative) for all
past dividend periods shall have been paid in full. Subject to the
foregoing, and not otherwise, such dividends (payable in cash, stock or
otherwise) as may be determined by the Board of Directors may be
declared and paid on any junior stock from time to time out of any
funds legally available therefor, and the Non-Cumulative Preferred
Stock shall not be entitled to participate in any such dividends,
whether payable in cash, stock or otherwise. No dividends shall be paid
or declared upon any shares of any class or series of stock of the
Association ranking on a parity (whether dividends on such stock are
cumulative or non-cumulative) with the Non-Cumulative Preferred Stock
in the payment of dividends for any period unless at or prior to the
time of such payment or declaration all dividends payable on the
Non-cumulative Preferred Stock for the most recent dividend period
ended prior to the date of such payment or declaration shall have been
paid in full. When dividends are not paid in full, as aforesaid, upon
the Non-Cumulative Preferred Stock and any other series of Preferred
Stock ranking on a parity as to dividends (whether dividends on such
stock are cumulative or non-cumulative) with the Non-Cumulative
Preferred Stock, all dividends declared upon the Non-Cumulative
Preferred Stock and any other series of Preferred Stock ranking on a
parity as to dividends with the Non-Cumulative Preferred Stock shall be
declared pro rata so that the amount of dividends declared per share on
the Non-cumulative Preferred Stock and such other Preferred Stock shall
in all cases bear to each other the same ratio that accrued dividends
per share on the Non-Cumulative Preferred Stock (but without any
accumulation in respect of any unpaid dividends for prior dividend
periods on the shares of Non-Cumulative Stock) and such other Preferred
Stock bear to each other. No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or
payments on the Non-Cumulative Preferred Stock which may be in arrears.
3. VOTING. The holders of Non-Cumulative Preferred Stock shall not have
any right to vote for the election of directors or for any other
purpose.
4. REDEMPTION.
(a) OPTIONAL REDEMPTION. The Association, at the option of the Board of
Directors, may redeem the whole or any part of the shares of
Non-Cumulative Preferred Stock at the time outstanding, at any time or
from time to time after the fifth anniversary of the date of original
issuance of the Non-Cumulative Preferred Stock, upon notice given as
hereinafter specified, at the redemption price per share equal to
$1,000 plus an amount equal to the amount of accrued and unpaid
dividends from the immediately preceding dividend payment date (but
without any accumulation for unpaid dividends for prior dividend
periods on the shares of Non-Cumulative Preferred Stock) to the
redemption date.
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<PAGE> 8
(b) Procedures. Notice of every redemption of shares of Non-Cumulative Preferred
Stock shall be mailed by first class mail, postage prepaid, addressed to the
holders of record of the shares to be redeemed at their respective last
addresses as they shall appear on the books of the Association. Such mailing
shall be at least 10 days and not more than 60 days prior to the date fixed for
redemption. Any notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the shareholder
receives such notice, and failure duly to give such notice by mail, or any
defect in such notice, to any holder of shares of Non-Cumulative Preferred Stock
designated for redemption shall not affect the validity of the proceedings for
the redemption of any other shares of Non-Cumulative Preferred Stock.
In case of redemption of a part only of the shares of Non-Cumulative
Preferred Stock at the time outstanding the redemption may be either
pro rata or by lot or by such other means as the Board of Directors of
the Association in its discretion shall determine. The Board of
Directors shall have full power and authority, subject to the
provisions herein contained, to prescribe the terms and conditions upon
which shares of the Non-Cumulative Preferred Stock shall be redeemed
from time to time.
If notice of redemption shall have been duly given, and, if on or
before the redemption date specified therein, all funds necessary for
such redemption shall have been set aside by the Association, separate
and apart from its other funds, in trust for the pro rata benefit of
the holders of the shares called for redemption, so as to be and
continue to be available therefor, then, notwithstanding that any
certificate for shares so called for redemption shall not have been
surrendered for cancellation, all shares so called for redemption shall
no longer be deemed outstanding on and after such redemption date, and
all rights with respect to such shares shall forthwith on such
redemption date cease and terminate, except only the right of the
holders thereof to, receive the amount payable on redemption thereof,
without interest.
If such notice of redemption shall have been duly given or if the
Association shall have given to the bank or trust company hereinafter
referred to irrevocable authorization promptly to give such notice,
and, if on or before the redemption date specified therein, the funds
necessary for such redemption shall have been deposited by the
Association with such bank or trust company in trust for the pro rata
benefit of the holders of the shares called for redemption, then,
notwithstanding that any certificate for shares so called for
redemption shall not have been surrendered for cancellation, from and
after the time of such deposit, all shares so called for redemption
shall no longer be deemed to be outstanding and all rights with respect
to such shares shall forthwith cease and terminate, except only the
right of the holders thereof to receive from such bank or trust company
at any time after the time of such deposit the funds so deposited,
without interest. The aforesaid bank or trust company shall be
organized and in good standing under the laws of the United States of
America or any state thereof, shall have capital, surplus and undivided
profits aggregating at least $50,000,000 according to its last
published statement of condition, and shall be identified in the notice
of redemption. Any interest accrued on such funds shall be paid to the
Association from time to time. In case fewer than all the shares of
Non-Cumulative Preferred Stock represented by a stock certificate are
redeemed, a new certificate shall be issued representing the unredeemed
shares without cost to the holder thereof.
Any funds so set aside or deposited, as the case may be, and unclaimed
at the end of the relevant escheat period under applicable state law
from such redemption date shall, to the extent permitted by law, be
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<PAGE> 9
released or repaid to the Association, after which repayment the
holders of the shares so called for redemption shall look only to the
Association for payment thereof.
5. LIQUIDATION.
(a) LIQUIDATION PREFERENCE. In the event of any voluntary liquidation,
dissolution or winding up of the affairs of the Association, the
holders of Non-cumulative Preferred Stock shall be entitled, before any
distribution or payment is made to the holders of any junior stock, to
be paid in full an amount per share equal to an amount equal to $1,000
plus an amount equal to the amount of accrued and unpaid dividends per
share from the immediately preceding dividend payment date (but without
any accumulation for unpaid dividends for prior dividend periods on the
shares of Non-cumulative Preferred Stock) per share to such
distribution or payment date (the "liquidation amount").
In the event of any involuntary liquidation, dissolution or winding up
of the affairs of the Association, then, before any distribution or
payment shall be made to the holders of any junior stock, the holders
of Non-Cumulative Preferred Stock shall be entitled to be paid in full
an amount per share equal to the liquidation amount.
If such payment shall have been made in full to all holders of shares
of Non-Cumulative Preferred Stock, the remaining assets of the
Association shall be distributed among the holders of junior stock,
according to their respective rights and preferences and in each case
according to their respective numbers of shares.
(b) INSUFFICIENT ASSETS. In the event that, upon any such voluntary or
involuntary liquidation, dissolution or winding up, the available
assets of the Association are insufficient to pay such liquidation
amount on all outstanding shares of Non-cumulative Preferred Stock,
then the holders of Non-Cumulative Preferred Stock shall share ratably
in any distribution of assets in proportion to the full amounts to
which they would otherwise be respectively entitled.
(c) INTERPRETATION. For the purposes of this paragraph 5, the
consolidation or merger of the Association with any other corporation
or association shall not be deemed to constitute a liquidation,
dissolution or winding up of the Association.
6. PREEMPTIVE RIGHTS. The Non-Cumulative Preferred Stock is not entitled
to any preemptive, subscription, conversion or exchange rights in
respect of any securities of the Association.
7. DEFINITIONS. As used herein with respect to the Non-Cumulative
Preferred Stock, the following terms shall have the following meanings:
(a) The term "junior stock" shall mean the Common Stock and any other
class or series of shares of the Association hereafter authorized over
which the Non-Cumulative Preferred Stock has preference or priority in
the payment of dividends or in the distribution of assets on any
liquidation, dissolution or winding up of the Association.
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<PAGE> 10
(b) The term "accrued dividends", with respect to any share of any
class or series, shall mean an amount computed at the annual dividend
rate for the class or series of which the particular share is a part,
from, if such share is cumulative, the date on which dividends on such
share became cumulative to and including the date to which such
dividends are to be accrued, less the aggregate amount of all dividends
theretofore paid thereon and, if such share is noncumulative, the
relevant date designated to and including the date to which such
dividends are accrued, less the aggregate amount of all dividends
theretofore paid with respect to such period.
(c) The term "Preferred Stock" shall mean all outstanding shares of all
series of preferred stock of the Association as defined in this Article
Fifth of the Articles of Association, as amended, of the Association.
8. RESTRICTION ON TRANSFER. No shares of Non-Cumulative Preferred Stock,
or any interest therein, may be sold, pledged, transferred or otherwise
disposed of without the prior written consent of the Association. The
foregoing restriction shall be stated on any certificate for any shares
of Non-Cumulative Preferred Stock.
9. ADDITIONAL RIGHTS. The shares of Non-Cumulative Preferred Stock shall
not have any relative, participating, optional or other special rights
and powers other than as set forth herein.
SIXTH. The Board of Directors shall appoint one of its members President of
this Association, who shall be Chairman of the Board, unless the Board appoints
another director to be the Chairman. The Board of Directors shall have the power
to appoint one or more Vice Presidents; and to appoint a cashier or such other
officers and employees as may be required to transact the business of this
Association.
The Board of Directors shall have the power to define the duties of the
officers and employees of the Association, to fix the salaries to be paid to
them; to dismiss them, to require bonds from them and to fix the penalty
thereof; to regulate the manner in which any increase of the capital of the
Association shall be made; to manage and administer the business and affairs of
the Association; to make all By-Laws that it may be lawful for them to make; and
generally to do and perform all acts that it may be legal for a Board of
Directors to do and perform.
SEVENTH. The Board of Directors shall have the power to change the location
of the main office to any other place within the limits of Charlotte, North
Carolina, without the approval of the shareholders but subject to the approval
of the Comptroller of the Currency; and shall have the power to establish or
change the location of any branch or branches of the Association to any other
location, without the approval of the shareholders but subject to the approval
of the Comptroller of the Currency.
EIGHTH. The corporate existence of this Association shall continue until
terminated in accordance with the laws of the United States.
NINTH. The Board of Directors of this Association, or any three or more
shareholders owning, in the aggregate, not less than 10 percent of the stock of
this Association, may call a special meeting of shareholders at any time. Unless
otherwise provided by the laws of the United States, a notice of the time,
place, and purpose of every annual and special meeting of the shareholders shall
be given by first-class mail, postage prepaid, mailed at
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<PAGE> 11
least ten days prior to the date of such meeting to each shareholder of record
at his address as shown upon the books of this Association.
TENTH. Each director and executive officer of this Association shall be
indemnified by the association against liability in any proceeding (including
without limitation a proceeding brought by or on behalf of the Association
itself) arising out of his status as such or his activities in either of the
foregoing capacities, except for any liability incurred on account of activities
which were at the time taken known or believed by such person to be clearly in
conflict with the best interests of the Association. Liabilities incurred by a
director or executive officer of the Association in defending a proceeding shall
be paid by the Association in advance of the final disposition of such
proceeding upon receipt of an undertaking by the director or executive officer
to repay such amount if it shall be determined, as provided in the last
paragraph of this Article Tenth, that he is not entitled to be indemnified by
the Association against such liabilities.
The indemnity against liability in the preceding paragraph of this Article
Tenth, including liabilities incurred in defending a proceeding, shall be
automatic and self-operative.
Any director, officer or employee of this Association who serves at the
request of the Association as a director, officer, employee or agent of a
charitable, not-for-profit, religious, educational or hospital corporation,
partnership, joint venture, trust or other enterprise, or a trade association,
or as a trustee or administrator under an employee benefit plan, or who serves
at the request of the Association as a director, officer or employee of a
business corporation in connection with the administration of an estate or trust
by the Association, shall have the right to be indemnified by the Association,
subject to the provisions set forth in the following paragraph of this Article
Tenth, against liabilities in any manner arising out of or attributable to such
status or activities in any such capacity, except for any liability incurred on
account of activities which were at the time taken known or believed by such
person to be clearly in conflict with the best interests of the Association, or
of the corporation, partnership, joint venture, trust, enterprise, Association
or plan being served by such person.
In the case of all persons except the directors and executive officers of
the Association, the determination of whether a person is entitled to
indemnification under the preceding paragraph of this Article Tenth shall be
made by and in the sole discretion of the Chief Executive Officer of the
Association. In the case of the directors and executive officers of the
Association, the indemnity against liability in the preceding paragraph of this
Article Tenth shall be automatic and self-operative.
For purposes of this Article Tenth of these Articles of Association only,
the following terms shall have the meanings indicated:
(a) "Association" means First Union National Bank and its direct and
indirect wholly-owned subsidiaries.
(b) "Director" means an individual who is or was a director of the
Association.
(c) "Executive officer" means an officer of the Association who by
resolution of the Board of Directors of the Association has been determined to
be an executive officer of the Association for purposes of Regulation O of the
Federal Reserve Board.
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<PAGE> 12
(d) "Liability" means the obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to an employee
benefit plan), or reasonable expenses, including counsel fees and expenses,
incurred with respect to a proceeding.
(e) "Party" includes an individual who was, is, or is threatened to be
made a named defendant or respondent in a proceeding.
(f) "Proceeding" means any threatened, pending, or completed claim,
action, suit, or proceeding, whether civil, criminal, administrative, or
investigative and whether formal or informal.
The Association shall have no obligation to indemnify any person for an
amount paid in settlement of a proceeding unless the Association consents in
writing to such settlement.
The right to indemnification herein provided for shall apply to persons who
are directors, officers, or employees of banks or other entities that are
hereafter merged or otherwise combined with the Association only after the
effective date of such merger or other combination and only as to their status
and activities after such date.
The right to indemnification herein provided for shall inure to the benefit
of the heirs and legal representatives of any person entitled to such right.
No revocation of, change in, or adoption of any resolution or provision in
the Articles of Association or By-laws of the Association inconsistent with,
this Article Tenth shall adversely affect the rights of any director, officer,
or employee of the Association with respect to (i) any proceeding commenced or
threatened prior to such revocation, change, or adoption, or (ii) any proceeding
arising out of any act or omission occurring prior to such revocation, change,
or adoption, in either case, without the written consent of such director,
officer, or employee.
The rights hereunder shall be in addition to and not exclusive of any other
rights to which a director, officer, or employee of the Association may be
entitled under any statute, agreement, insurance policy, or otherwise.
The Association shall have the power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, or employee of the
Association, or is or was serving at the request of the Association as a
director, officer, employee, or agent of another corporation, partnership, joint
venture, trust, trade association, employee benefit plan, or other enterprise,
against any liability asserted against such director, officer, or employee in
any such capacity, or arising out of their status as such, whether or not the
Association would have the power to indemnify such director, officer, or
employee against such liability, excluding insurance coverage for a formal order
assessing civil money penalties against an Association director or employee.
Notwithstanding anything to the contrary provided herein, no person shall
have a right to indemnification with respect to any liability (i) incurred in an
administrative proceeding or action instituted by an appropriate bank regulatory
agency which proceeding or action results in a final order assessing civil money
penalties or requiring affirmative action by an individual or individuals in the
form of payments to the Association, (ii) to the extent such person is entitled
to receive payment therefor under any insurance policy or from any corporation,
partnership, joint venture, trust, trade association, employee benefit plan, or
other enterprise other than the Association, or (iii)
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<PAGE> 13
to the extent that a court of competent jurisdiction determines that such
indemnification is void or prohibited under state or federal law.
ELEVENTH. These Articles of Association may be amended at any regular or
special meeting of the shareholders by the affirmative vote of the holders of a
majority of the stock of this Association, unless the vote of holders of a
greater amount of stock is required by law, and in that case, by the vote of the
holders of such greater amount.
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<PAGE> 14
Exhibit 2 to Form T-1
[LOGO]
- -----------------------------------------------------------------
Comptroller of the Currency
Administrator of National Banks
- -----------------------------------------------------------------
Washington, D.C. 20219
Certificate
I, Julie L. Williams, Acting Comptroller of the Currency, do hereby certify
that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession , custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "First Union National Bank," Charlotte, North Carolina, (Charter No. 1) is a
National Banking Association formed under the laws of the United States and is
authorized thereunder to transact the business of banking and exercise Fiduciary
Powers on the date of this Certificate.
IN TESTIMONY WHEREOF, I have
hereunto subscribed my name and
caused my seal of office to be
affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia,
this 3th day of November, 1998.
[SEAL] /s/ Julie L. Williams
------------------------------------
Acting Comptroller of the Currency
<PAGE> 15
Exhibit 3 to Form T-1
[LOGO]
- -----------------------------------------------------------------
Comptroller of the Currency
Administrator of National Banks
- -----------------------------------------------------------------
Washington, D.C. 20219
Certificate of Fiduciary Powers
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession , custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "First Union National Bank," Charlotte, North Carolina, (Charter No. 000001),
was granted, under the hand and seal of the Comptroller, the right to act in all
fiduciary capacities authorized under the provisions of the Act of Congress
approved September 28, 1962, 76 Stat. 668, 12 U.S.C. 92a, and that the authority
so granted remains in full force and effect on the date of this Certificate.
IN TESTIMONY WHEREOF, I have
hereunto subscribed my name and
caused my seal of office to be
affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia,
this 7th day of April, 1999.
[SEAL] /s/ John D. Hawke, Jr.
------------------------------------
Comptroller of the Currency
<PAGE> 16
Exhibit 4 to Form T-1
BY-LAWS OF
FIRST UNION NATIONAL BANK
Charter No. 22693
As Restated Effective February 26, 1998
<PAGE> 17
BY-LAWS OF
FIRST UNION NATIONAL BANK
ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1.1 ANNUAL MEETING. The annual meeting of the shareholders for the
election of directors and for the transaction of such other business as may
properly come before the meeting shall be held on the third Tuesday of April in
each year, commencing with the year 1998, except that the Board of Directors
may, from time to time and upon passage of a resolution specifically setting
forth its reasons, set such other date for such meeting during the month of
April as the Board of Directors may deem necessary or appropriate; provided,
however, that if an annual meeting would otherwise fall on a legal holiday, then
such annual meeting shall be held on the second business day following such
legal holiday. The holders of a majority of the outstanding shares entitled to
vote which are represented at any meeting of the shareholders may choose persons
to act as Chairman and as Secretary of the meeting.
SECTION 1.2 SPECIAL MEETINGS. Except as otherwise specifically provided by
statute, special meetings of the shareholders may be called for any purpose at
any time by the Board of Directors or by any three or more shareholders owning,
in the aggregate, not less than ten percent of the stock of the Association.
Every such special meeting, unless otherwise provided by law, shall be called by
mailing, postage prepaid, not less than ten days prior to the date fixed for
such meeting, to each shareholder at his address appearing on the books of the
Association, a notice stating the purpose of the meeting.
SECTION 1.3 NOMINATIONS FOR DIRECTORS. Nominations for election to the Board of
Directors may be made by the Board of Directors or by any stockholder of any
outstanding class of capital stock of the bank entitled to vote for the election
of directors. Nominations, other than those made by or on behalf of the existing
management of the bank, shall be made in writing and shall be delivered or
mailed to the President of the Bank and to the Comptroller of the Currency,
Washington, D. C., not less than 14 days nor more than 50 days prior to any
meeting of stockholders called for the election of directors, provided however,
that if less than 21 days' notice of such meeting is given to shareholders, such
nomination shall be mailed or delivered to the President of the Bank and to the
Comptroller of the Currency not later than the close of business on the seventh
day following the day on which the notice of meeting was mailed. Such
notification shall contain the following information to the
<PAGE> 18
extent known to the notifying shareholder: (a) the name and address of each
proposed nominee; (b) the principal occupation of each proposed nominee; (c) the
total number of shares of capital stock of the bank that will be voted for each
proposed nominee; (d) the name and residence address of the notifying
shareholder; and (e) the number of shares of capital stock of the bank owned by
the notifying shareholder. Nominations not made in accordance herewith may, in
his discretion, be disregarded by the chairman of the meeting, and upon his
instructions, the vote tellers may disregard all votes cast for each such
nominee.
SECTION 1.4 JUDGES OF ELECTION. The Board may at any time appoint from among the
shareholders three or more persons to serve as Judges of Election at any meeting
of shareholders; to act as judges and tellers with respect to all votes by
ballot at such meeting and to file with the Secretary of the meeting a
Certificate under their hands, certifying the result thereof.
SECTION 1.5 PROXIES. Shareholders may vote at any meeting of the shareholders by
proxies duly authorized in writing, but no officer or employee of this
Association shall act as proxy. Proxies shall be valid only for one meeting, to
be specified therein, and any adjournments of such meeting. Proxies shall be
dated and shall be filed with the records of the meeting.
SECTION 1.6 QUORUM. A majority of the outstanding capital stock, represented in
person or by proxy, shall constitute a quorum at any meeting of shareholders,
unless otherwise provided by law; but less than a quorum may adjourn any
meeting, from time to time, and the meeting may be held, as adjourned, without
further notice. A majority of the votes cast shall decide every question or
matter submitted to the shareholders at any meeting, unless otherwise provided
by law or by the Articles of Association.
ARTICLE II
DIRECTORS
SECTION 2.1 BOARD OF DIRECTORS. The Board of Directors (hereinafter referred to
as the "Board"), shall have power to manage and administer the business and
affairs of the Association. Except as expressly limited by law, all corporate
powers of the Association shall be vested in and may be exercised by said Board.
SECTION 2.2 NUMBER. The Board shall consist of not less than five nor more than
twenty-five directors, the exact number within such minimum and maximum limits
to be fixed and determined from time to time by resolution of a majority of the
full Board or by resolution of the shareholders at any meeting thereof;
provided, however, that a majority of the full Board of Directors may not
increase the number of directors to a number which, (1) exceeds by more than two
the number of directors last elected by shareholders where such number was
fifteen or less, and (2) to a
2
<PAGE> 19
number which exceeds by more than four the number of directors last elected by
shareholders where such number was sixteen or more, but in no event shall the
number of directors exceed twenty-five.
SECTION 2.3 ORGANIZATION MEETING. The Secretary of the meeting upon receiving
the certificate of the judges, of the result of any election, shall notify the
directors-elect of their election and of the time at which they are required to
meet at the Main Office of the Association for the purpose of organizing the new
Board and electing and appointing officers of the Association for the succeeding
year. Such meeting shall be held as soon thereafter as practicable. If, at the
time fixed for such meeting, there shall not be a quorum present, the directors
present may adjourn the meeting from time to time, until a quorum is obtained.
SECTION 2.4 REGULAR MEETINGS. Regular meetings of the Board of Directors shall
be held at such place and time as may be designated by resolution of the Board
of Directors. Upon adoption of such resolution, no further notice of such
meeting dates or the places or times thereof shall be required. Upon the failure
of the Board of Directors to adopt such a resolution, regular meetings of the
Board of Directors shall be held, without notice, on the third Tuesday in
February, April, June, August, October and December, commencing with the year
1997, at the main office or at such other place and time as may be designated by
the Board of Directors. When any regular meeting of the Board would otherwise
fall on a holiday, the meeting shall be held on the next business day unless the
Board shall designate some other day.
SECTION 2.5 SPECIAL MEETINGS. Special meetings of the Board of Directors may be
called by the President of the Association, or at the request of three (3) or
more directors. Each member of the Board of Directors shall be given notice
stating the time and place, by telegram, letter, or in person, of each such
special meeting.
SECTION 2.6 QUORUM. A majority of the directors shall constitute a quorum at any
meeting, except when otherwise provided by law; but a less number may adjourn
any meeting, from time to time, and the meeting may be held, as adjourned,
without further notice.
SECTION 2.7 VACANCIES. When any vacancy occurs among the directors, the
remaining members of the Board, in accordance with the laws of the United
States, may appoint a director to fill such vacancy at any regular meeting of
the Board, or at a special meeting called for that purpose.
SECTION 2.8 ADVISORY BOARDS. The Board of Directors may appoint Advisory Boards
for each of the states in which the Association conducts operations. Each such
Advisory Board shall consist of as many persons as the Board of Directors may
determine. The
3
<PAGE> 20
duties of each Advisory Board shall be to consult and advise with the Board of
Directors and senior officers of the Association in such state with regard to
the best interests of the Association and to perform such other duties as the
Board of Directors may lawfully delegate. The senior officer in such state, or
such officers as directed by such senior officer, may appoint advisory boards
for geographic regions within such state and may consult with the State Advisory
Boards prior to such appointments.
ARTICLE III
COMMITTEES OF THE BOARD
SECTION 3.1 The Board of Directors, by resolution adopted by a majority of the
number of directors fixed by these By-Laws, may designate two or more directors
to constitute an Executive Committee and other committees, each of which, to the
extent authorized by law and provided in such resolution, shall have and may
exercise all of the authority of the Board of Directors and the management of
the Association. The designation of any committee and the delegation thereto of
authority shall not operate to relieve the Board of Directors, or any member
thereof, of any responsibility or liability imposed upon it or any member of the
Board of Directors by law. The Board of Directors reserves to itself alone the
power to act on (1) dissolution, merger or consolidation, or disposition of
substantially all corporate property, (2) designation of committees or filling
vacancies on the Board of Directors or on a committee of the Board (except as
hereinafter provided), (3) adoption, amendment or repeal of By-laws, (4)
amendment or repeal of any resolution of the Board which by its terms is not so
amendable or repealable, and (5) declaration of dividends, issuance of stock, or
recommendations to stockholders of any action requiring stockholder approval.
The Board of Directors or the Chairman of the Board of Directors of the
Association may change the membership of any committee at any time, fill
vacancies therein, discharge any committee or member thereof either with or
without cause at any time, and change at any time the authority and
responsibility of any such committee.
A majority of the members of any committee of the Board of Directors may fix
such committee's rules of procedure. All action by any committee shall be
reported to the Board of Directors at a meeting succeeding such action, except
such actions as the Board may not require to be reported to it in the resolution
creating any such committee. Any action by any committee shall be subject to
revision, alteration, and approval by the Board of Directors, except to the
extent otherwise provided in the resolution creating such committee; provided,
however, that no rights or acts of third parties shall be affected by any such
revision or alteration.
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<PAGE> 21
ARTICLE IV
OFFICERS AND EMPLOYEES
SECTION 4.1 OFFICERS. The officers of the Association may be a Chairman of the
Board, a Vice Chairman of the Board, one or more Chairmen or Vice Chairmen (who
shall not be required to be directors of the Association), a President, one or
more Vice Presidents, a Secretary, a Cashier or Treasurer, and such other
officers, including officers holding similar or equivalent titles to the above
in regions, divisions or functional units of the Association, as may be
appointed by the Board of Directors. The Chairman of the Board and the President
shall be members of the Board of Directors. Any two or more offices may be held
by one person, but no officer shall sign or execute any document in more than
one capacity.
SECTION 4.2 ELECTION, TERM OF OFFICE, AND QUALIFICATION. Each officer shall be
chosen by the Board of Directors and shall hold office until the annual meeting
of the Board of Directors held next after his election or until his successor
shall have been duly chosen and qualified, or until his death, or until he shall
resign, or shall have been disqualified, or shall have been removed from office.
SECTION 4.2(a) OFFICERS ACTING AS ASSISTANT SECRETARY. Notwithstanding Section 1
of these By-laws, any Senior Vice President, Vice President, or Assistant Vice
President shall have, by virtue of his office, and by authority of the By-laws,
the authority from time to time to act as an Assistant Secretary of the Bank,
and to such extent, said officers are appointed to the office of Assistant
Secretary.
SECTION 4.3 CHIEF EXECUTIVE OFFICER. The Board of Directors shall designate one
of its members to be the President of this Association, and the officer so
designated shall be an ex officio member of all committees of the Association
except the Examining Committee, and its Chief Executive Officer unless some
other officer is so designated by the Board of Directors.
SECTION 4.4 DUTIES OF OFFICERS. The duties of all officers shall be prescribed
by the Board of Directors. Nevertheless, the Board of Directors may delegate to
the Chief Executive Officer the authority to prescribe the duties of other
officers of the corporation not inconsistent with law, the charter, and these
By-laws, and to appoint other employees, prescribe their duties, and to dismiss
them. Notwithstanding such delegation of authority, any officer or employee also
may be dismissed at any time by the Board of Directors.
SECTION 4.5 OTHER EMPLOYEES. The Board of Directors may appoint from time to
time such tellers, vault custodians, bookkeepers, and other clerks, agents, and
employees as it may deem advisable
5
<PAGE> 22
for the prompt and orderly transaction of the business of the Association,
define their duties, fix the salary to be paid them, and dismiss them. Subject
to the authority of the Board of Directors, the Chief Executive Officer or any
other officer of the Association authorized by him, may appoint and dismiss all
such tellers, vault custodians, bookkeepers and other clerks, agents, and
employees, prescribe their duties and the conditions of their employment, and
from time to time fix their compensation.
SECTION 4.6 REMOVAL AND RESIGNATION. Any officer or employee of the Association
may be removed either with or without cause by the Board of Directors. Any
employee other than an officer elected by the Board of Directors may be
dismissed in accordance with the provisions of the preceding Section 4.5. Any
officer may resign at any time by giving written notice to the Board of
Directors or to the Chief Executive Officer of the Association. Any such
resignation shall become effective upon its being accepted by the Board of
Directors, or the Chief Executive Officer.
ARTICLE V
FIDUCIARY POWERS
SECTION 5.1 CAPITAL MANAGEMENT GROUP. There shall be an area of this Association
known as the Capital Management Group which shall be responsible for the
exercise of the fiduciary powers of this Association. The Capital Management
Group shall consist of four service areas: Fiduciary Services, Retail Services,
Investments and Marketing. The Fiduciary Services unit shall consist of personal
trust, employee benefits, corporate trust and operations. The General Office for
the Fiduciary Services unit shall be located in Charlotte, N.C., with City Trust
Offices located in such cities within the State of North Carolina as designated
by the Board of Directors.
SECTION 5.2 TRUST OFFICERS. There shall be a General Trust Officer of this
Association whose duties shall be to manage, supervise and direct all the
activities of the Capital Management Group. Further, there shall be one or more
Senior Trust Officers designated to assist the General Trust Officer in the
performance of his duties. They shall do or cause to be done all things
necessary or proper in carrying out the business of the Capital Management Group
in accordance with provisions of applicable law and regulation.
SECTION 5.3 CAPITAL MANAGEMENT/GENERAL TRUST COMMITTEE. There shall be a Capital
Management/General Trust Committee composed of not less than four (4) members of
the Board of Directors or officers of this Association who shall be appointed
annually or from time to time by the Board of Directors of the Association. The
General Trust Officer shall serve as an ex-officio member of the Committee. Each
member shall serve until his successor is
6
<PAGE> 23
appointed. The Board of Directors or the Chairman of the Board may change the
membership of the Capital Management/General Trust Committee at any time, fill
vacancies therein, or discharge any member thereof with or without cause at any
time. The Committee shall counsel and advise on all matters relating to the
business or affairs of the Capital Management Group and shall adopt overall
policies for the conduct of the business of the Capital Management Group
including but not limited to: general administration, investment policies, new
business development, and review for approval of major assignments of functional
responsibilities. The Committee shall meet at least quarterly or as called for
by its Chairman or any three (3) members of the Committee. A quorum shall
consist of three (3) members. In carrying out its responsibilities, the Capital
Management/General Trust Committee shall review the actions of all officers,
employees and committees utilized by this Association in connection with the
activities of the Capital Management Group and may assign the administration and
performance of any fiduciary powers or duties to any of such officers or
employees or to the Investment Policy Committee, Personal Trust Administration
Committee, Account Review Committee, Corporate and Institutional Accounts
Committee, or any other committees it shall designate. One of the methods to be
used in the review process will be the thorough scrutiny of the Report of
Examination by the Office of the Comptroller of the Currency and the reports of
the Audit Division of First Union Corporation, as they relate to the activities
of the Capital Management Group. These reviews shall be in addition to reviews
of such reports by the Audit Committee of the Board of Directors. The Chairman
of the Capital Management/ General Trust Committee shall be appointed by the
Chairman of the Board of Directors. He shall cause to be recorded in appropriate
minutes all actions taken by the Committee. The minutes shall be signed by its
Secretary and approved by its Chairman. Further, the Committee shall summarize
all actions taken by it and shall submit a report of its proceedings to the
Board of Directors at its next regularly scheduled meeting following a meeting
of the Capital Management/General Trust Committee. As required by Section 9.7 of
Regulation 9 of the Comptroller of the Currency, the Board of Directors retains
responsibility for the proper exercise of the fiduciary powers of this
Association.
The Fiduciary Services unit of the Capital Management Group will maintain a list
of securities approved for investment in fiduciary accounts and will from time
to time provide the Capital Management/General Trust Committee with current
information relative to such list and also with respect to transactions in other
securities not on such list. It is the policy of this Association that members
of the Capital Management/General Trust Committee should not buy, sell or trade
in securities which are on such approved list or in any other securities in
which the Fiduciary Services unit has taken, or intends to take, a position in
fiduciary accounts in any circumstances in which any such transaction could be
viewed as a possible conflict of interest or
7
<PAGE> 24
could constitute a violation of applicable law or regulation. Accordingly, if
any such securities are owned by any member of the Capital Management/General
Trust Committee at the time of appointment to such Committee, the Capital
Management Group shall be promptly so informed in writing. If any member of the
Capital Management/General Trust Committee intends to buy, sell, or trade in any
such securities while serving as a member of the Committee, he should first
notify the Capital Management Group in order to make certain that any proposed
transaction will not constitute a violation of this policy or of applicable law
or regulation.
SECTION 5.4 INVESTMENT POLICY COMMITTEE. There shall be an Investment Policy
Committee composed of not less than seven (7) officers and/or employees of this
Association who shall be appointed annually or from time to time by the Board of
Directors. Each member shall serve until his successor is appointed. Meetings
shall be called by the Chairman or any two (2) members of the Committee. A
quorum shall consist of five (5) members. The Investment Policy Committee shall
exercise such fiduciary powers and perform such duties as may be assigned to it
by the Capital Management/General Trust Committee. All actions taken by the
Investment Policy Committee shall be recorded in appropriate minutes, signed by
the Secretary thereof, approved by its Chairman and submitted to the Capital
Management/General Trust Committee at its next ensuing regular meeting for its
review and approval.
SECTION 5.5 PERSONAL TRUST ADMINISTRATION COMMITTEE. There shall be a Personal
Trust Administration Committee composed of not less than five (5) officers, who
shall be appointed annually or from time to time by the Board of Directors. Each
member shall serve until his successor is appointed. Meetings shall be called by
the Chairman or any three (3) members of the Committee. A quorum shall consist
of three (3) members. The Personal Trust Administration Committee shall exercise
such fiduciary powers and perform such duties as may be assigned to it by the
Capital Management/General Trust Committee. All action taken by the Personal
Trust Administration Committee shall be recorded in appropriate minutes signed
by the Secretary thereof, approved by its Chairman, and submitted to the Capital
Management/General Trust Committee at its next ensuing regular meeting for its
review and approval.
SECTION 5.6 ACCOUNT REVIEW COMMITTEE. There shall be an Account Review Committee
composed of not less than four (4) officers and/or employees of this
Association, who shall be appointed annually or from time to time by the Board
of Directors. Each member shall serve until his successor is appointed. Meetings
shall be called by the Chairman or any two (2) members of the Committee. A
quorum shall consist of three (3) members. The Account Review Committee shall
exercise such fiduciary powers and perform such duties as may be assigned to it
by the Capital Management/General Trust Committee. All actions taken by the
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<PAGE> 25
Account Review Committee shall be recorded in appropriate minutes, signed by the
Secretary thereof, approved by its Chairman and submitted to the Capital
Management/ General Trust Committee at its next ensuing regular meeting for its
review and approval.
SECTION 5.7 CORPORATE AND INSTITUTIONAL ACCOUNTS COMMITTEE. There shall be a
Corporate and Institutional Accounts Committee composed of not less than five
(5) officers and/or employees of this Association, who shall be appointed
annually, or from time to time, by the Capital Management/General Trust
Committee and approved by the Board of Directors. Meetings may be called by the
Chairman or any two (2) members of the Committee. A quorum shall consist of
three (3) members. The Corporate and Institutional Accounts Committee shall
exercise such fiduciary powers and duties as may be assigned to it by the
General Trust Committee. All actions taken by the Corporate and Institutional
Accounts Committee shall be recorded in appropriate minutes, signed by the
Secretary thereof, approved by its Chairman and made available to the General
Trust Committee at its next ensuing regular meeting for its review and approval.
ARTICLE VI
STOCK AND STOCK CERTIFICATES
SECTION 6.1 TRANSFERS. Shares of stock shall be transferable on the books of the
Association, and a transfer book shall be kept in which all transfers of stock
shall be recorded. Every person becoming a shareholder by such transfer shall,
in proportion to his shares, succeed to all rights and liabilities of the prior
holder of such shares.
SECTION 6.2 STOCK CERTIFICATES. Certificates of stock shall bear the signature
of the Chairman, the Vice Chairman, the President, or a Vice President (which
may be engraved, printed, or impressed), and shall be signed manually or by
facsimile process by the Secretary, Assistant Secretary, Cashier, Assistant
Cashier, or any other officer appointed by the Board of Directors for that
purpose, to be known as an Authorized Officer, and the seal of the Association
shall be engraved thereon. Each certificate shall recite on its face that the
stock represented thereby is transferable only upon the books of the Association
properly endorsed.
ARTICLE VII
CORPORATE SEAL
SECTION 7.1 The President, the Cashier, the Secretary, or any
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<PAGE> 26
Assistant Cashier, or Assistant Secretary, or other officer thereunto designated
by the Board of Directors shall have authority to affix the corporate seal to
any document requiring such seal, and to attest the same. Such seal shall be
substantially in the following form.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 8.1 FISCAL YEAR. The fiscal year of the Association shall be the
calendar year.
SECTION 8.2 EXECUTION OF INSTRUMENTS. All agreements, indentures, mortgages,
deeds, conveyances, transfers, certificates, declarations, receipts, discharges,
releases, satisfactions, settlements, petitions, notices, applications,
schedules, accounts, affidavits, bonds, undertakings, proxies, and other
instruments or documents may be signed, executed, acknowledged, verified,
delivered or accepted in behalf of the Association by the Chairman of the Board,
the Vice Chairman of the Board, any Chairman or Vice Chairman, the President,
any Vice President or Assistant Vice President, the Secretary or any Assistant
Secretary, the Cashier or Treasurer or any Assistant Cashier or Assistant
Treasurer, or any officer holding similar or equivalent titles to the above in
any regions, divisions or functional units of the Association, or, if in
connection with the exercise of fiduciary powers of the Association, by any of
said officers or by any Trust Officer or Assistant Trust Officer (or equivalent
titles); provided, however, that where required, any such instrument shall be
attested by one of said officers other than the officer executing such
instrument. Any such instruments may also be executed, acknowledged, verified,
delivered or accepted in behalf of the Association in such other manner and by
such other officers as the Board of Directors may from time to time direct. The
provisions of this Section 8.2 are supplementary to any other provision of these
By-laws.
SECTION 8.3 RECORDS. The Articles of Association, the By-laws, and the
proceedings of all meetings of the shareholders, the Board of Directors,
standing committees of the Board, shall be recorded in appropriate minute books
provided for the purpose. The minutes of each meeting shall be signed by the
Secretary, Cashier, or other officer appointed to act as Secretary of the
meeting.
ARTICLE IX
BY-LAWS
SECTION 9.1 INSPECTION. A copy of the By-laws, with all amendments thereto,
shall at all times be kept in a convenient place at the Head Office of the
Association, and shall be open
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<PAGE> 27
for inspection to all shareholders, during banking hours.
SECTION 9.2 AMENDMENTS. The By-laws may be amended, altered or repealed, at any
regular or special meeting of the Board of Directors, by a vote of a majority of
the whole number of Directors.
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<PAGE> 28
EXHIBIT A
First Union National Bank
Article X
Emergency By-laws
In the event of an emergency declared by the President of the United States or
the person performing his functions, the officers and employees of this
Association will continue to conduct the affairs of the Association under such
guidance from the directors or the Executive Committee as may be available
except as to matters which by statute require specific approval of the Board of
Directors and subject to conformance with any applicable governmental directives
during the emergency.
OFFICERS PRO TEMPORE AND DISASTER
Section 1. The surviving members of the Board of Directors or the Executive
Committee shall have the power, in the absence or disability of any officer, or
upon the refusal of any officer to act, to delegate and prescribe such officer's
powers and duties to any other officer, or to any director, for the time being.
Section 2. In the event of a state of disaster of sufficient severity to prevent
the conduct and management of the affairs and business of this Association by
its directors and officers as contemplated by these By-laws, any two or more
available members of the then incumbent Executive Committee shall constitute a
quorum of that Committee for the full conduct and management of the affairs and
business of the Association in accordance with the provisions of Article II of
these By-laws; and in addition, such Committee shall be empowered to exercise
all of the powers reserved to the General Trust Committee under Section 5.3 of
Article V hereof. In the event of the unavail- ability, at such time, of a
minimum of two members of the then incumbent Executive Committee, any three
available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Association in
accordance with the foregoing provisions of this section. This By-law shall be
subject to implementation by resolutions of the Board of Directors passed from
time to time for that purpose, and any provisions of these By-laws (other than
this section) and any resolutions which are contrary to the provisions of this
section or to the provisions of any such implementary resolutions shall be
suspended until it shall be determined by an interim Executive Committee acting
under this section that it shall be to the advantage of this Association to
resume the conduct and management of its affairs and business under all of the
other provisions of these By-laws.
<PAGE> 29
Officer Succession
BE IT RESOLVED, that if consequent upon war or warlike damage or disaster, the
Chief Executive Officer of this Association cannot be located by the then acting
Head Officer or is unable to assume or to continue normal executive duties, then
the authority and duties of the Chief Executive Officer shall, without further
action of the Board of Directors, be automatically assumed by one of the
following persons in the order designated:
Chairman
President
Division Head/Area Administrator - Within this officer class, officers shall
take seniority on the basis of length of service in such office or, in the event
of equality, length of service as an officer of the Association.
Any one of the above persons who in accordance with this resolution assumes the
authority and duties of the Chief Executive Officer shall continue to serve
until he resigns or until five-sixths of the other officers who are attached to
the then acting Head Office decide in writing he is unable to perform said
duties or until the elected Chief Executive Officer of this Association, or a
person higher on the above list, shall become available to perform the duties of
Chief Executive Officer of the Association.
BE IT FURTHER RESOLVED, that anyone dealing with this Association may accept a
certification by any three officers that a specified individual is acting as
Chief Executive Officer in accordance with this resolution; and that anyone
accepting such certification may continue to consider it in force until notified
in writing of a change, said notice of change to carry the signatures of three
officers of the Association.
Alternate Locations
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<PAGE> 30
The offices of the Association at which its business shall be conducted shall be
the main office thereof in each city which is designated as a City Office (and
branches, if any), and any other legally authorized location which may be leased
or acquired by this Association to carry on its business. During an emergency
resulting in any authorized place of business of this Association being unable
to function, the business ordinarily conducted at such location shall be
relocated elsewhere in suitable quarters, in addition to or in lieu of the
locations heretofore mentioned, as may be designated by the Board of Directors
or by the Executive Committee or by such persons as are then, in accordance with
resolutions adopted from time to time by the Board of Directors dealing with the
exercise of authority in the time of such emergency, conducting the affairs of
this Association. Any temporarily relocated place of business of this
Association shall be returned to its legally authorized location as soon as
practicable and such temporary place of business shall then be discontinued.
Acting Head Offices
BE IT RESOLVED, that in case of and provided because of war or warlike damage or
disaster, the General Office of this Association, located in Charlotte, North
Carolina, is unable temporarily to continue its functions, the Raleigh office,
located in Raleigh, North Carolina, shall automatically and without further
action of this Board of Directors, become the "Acting Head Office of this
Association";
BE IT FURTHER RESOLVED, that if by reason of said war or warlike damage or
disaster, both the General Office of this Association and the said Raleigh
Office of this Association are unable to carry on their functions, then and in
such case, the Asheville Office of this Association, located in Asheville, North
Carolina, shall, without further action of this Board of Directors, become the
"Acting Head Office of this Association"; and if neither the Raleigh Office nor
the Asheville Office can carry on their functions, then the Greensboro Office of
this Association, located in Greensboro, North Carolina, shall, without further
action of this Board of Directors, become the "Acting Head Office of this
Association"; and if neither the Raleigh Office, the Asheville Office, nor the
Greensboro Office can carry on their functions, then the Lumberton Office of
this Association, located in Lumberton, North Carolina, shall, without further
action of this Board of Directors, become the "Acting Head Office of this
Association". The Head Office shall resume its functions at its legally
authorized location as soon as practicable.
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<PAGE> 31
Exhibit 7 to Form T-1
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR SEPTEMBER 30, 1999
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day
of the quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
C400
DOLLAR AMOUNT IN THOUSANDS RCFD BIL MIL THOU
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule RC-A):
a. Noninterest-bearing balances and currency and coin (1)....................... 0081 8,946,000 1.a.
b. Interest-bearing balances (2)................................................ 0071 266,000 1.b.
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A)................... 1754 1,644,000 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)................. 1773 47,356,000 2.b.
3. Federal funds sold and securities purchased under agreements to resell........... 1350 2,856,000 3.
4. Loans and lease financing receivables
a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 132,839,000 4.a.
b. LESS: Allowance for loan and lease losses RCFD 3123 1,743,000 4.b.
c. LESS: Allocated transfer risk reserve RCFD 3128 0
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b and 4.c).......................... 21 131,096,000 4.d.
5. Trading assets (from Schedule RC-D............................................... 3545 8,333,000 5.
6. Premises and fixed assets (including capitalized leases)......................... 2145 3,070,000 6.
7. Other real estate owned (from Schedule RC-M)..................................... 2150 134,000 7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) 2130 262,000 8.
9. Customers' liability to this bank on acceptances outstanding..................... 2155 807,000 9.
10. Intangible assets (from Schedule RC-M)........................................... 2143 5,115,000 10.
11. Other assets (from Schedule RC-F)................................................ 2160 10,789,000 11.
12. Total assets (sum of items 1 through 11)......................................... 2170 220,674,000 12.
</TABLE>
- ----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE> 32
Schedule RC--Continued
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS BIL MIL THOU
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E,
part I)....................................................................... RCON 2200 129,621,000 13.a.
(1) Noninterest-bearing (1) RCON 6631 21,341,000 13.a.(1)
(2) Interest-bearing...................................... RCON 6636 108,280,000 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs
(from Schedule RC-E, part II)............................................... RCFN 2200 9,838,000 13.b.
(1) Noninterest-bearing................................... RCFN 6631 466,000 13.b.(1)
(2) Interest-bearing...................................... RCFN 6636 9,372,000 13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase.......... RCFD 2800 23,796,000 14.
15. a. Demand notes issued to the U.S. Treasury........................................ RCON 2840 782,000 15.a.
b. Trading liabilities (from Schedule RC-D)........................................ RCFD 3548 4,984,000 15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):................................................................
a. With a remaining maturity of one year or less................................... RCFD 2332 14,643,000 16.a.
b. With a remaining maturity of more than one year through three years............. RCFD A547 5,639,000 16.b.
c. With a remaining maturity of more than three years.............................. RCFD A548 2,872,000 16.c.
17. Not applicable.....................................................................
18. Bank's liability on acceptances executed and outstanding........................... RCFD 2920 807,000 18.
19. Subordinated notes and debentures (2).............................................. RCFD 3200 4,269,000 19.
20. Other liabilities (from Schedule RC-G)............................................. RCFD 2930 6,515,000 20.
21. Total liabilities (sum of items 13 through 20)..................................... RCFD 2948 203,766,000 21.
22. Not applicable.....................................................................
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus...................................... RCFD 3838 161,000 23.
24. Common stock....................................................................... RCFD 3230 455,000 24.
25. Surplus (exclude all surplus related to preferred stock)........................... RCFD 3839 13,306,000 25.
26. a. Undivided profits and capital reserves.......................................... RCFD 3632 3,553,000 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities.......... RCFD 8434 (562,000) 26.b.
c. Accumulated net gains (losses) on cash flow hedges.............................. RCFD 4336 0 26 c.
27. Cumulative foreign currency translation adjustments................................ RCFD 3284 (5,000) 27.
28. Total equity capital (sum of items 23 through 27).................................. RCFD 3210 16,908,000 28.
29. Total liabilities and equity capital (sum of items 21 and 28)...................... RCFD 3300 220,674,000 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes
the most comprehensive level of auditing work performed for the bank by independent Number
external auditors as of any date during 1998......................................... RCFD 6724 N/A M.1.
</TABLE>
1 = Independent audit of the bank conducted in accordance with
generally accepted auditing standards by a certified public
accounting firm which submits a report on the bank
2 = Independent audit of the bank's parent holding company
conducted in accordance with generally accepted auditing
standards by a certified public accounting firm which submits a
report on the consolidated holding company (but not on the bank
separately)
3 = Directors' examination of the bank conducted in accordance
with generally accepted auditing standards by a certified public
accounting firm (may be required by state chartering authority)
4 = Directors' examination of the bank performed by other external
auditors (may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
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(1) Includes total demand deposits and noninterest-bearing time and savings
deposit.
(2) Includes limited-life preferred stock and related surplus.
2
