<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON , 1996
REGISTRATION NO. 333-01303
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
PRE-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
DRESSER INDUSTRIES, INC.
(Exact name of Registrant as specified in its Charter)
<TABLE>
<S> <C>
DELAWARE 75-0813641
(State of (I.R.S. Employer Identification
incorporation) No.)
</TABLE>
--------------------------
2001 ROSS AVENUE
DALLAS, TEXAS 75201
(214) 740-6000
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
------------------------------
REBECCA R. MORRIS
VICE PRESIDENT - CORPORATE COUNSEL AND SECRETARY
2001 ROSS AVENUE
DALLAS, TEXAS 75201
(214) 740-6000
(Name, Address, including zip code, and telephone number,
including area code, of agent for service)
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC:
From time to time after the effective date of this Registration Statement as
determined by market conditions.
--------------------------
If the only securities being registered on this Form are 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 in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
--------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE OFFERING REGISTRATION
REGISTERED REGISTERED (1) PER UNIT (2)(3) PRICE (2)(3) FEE
<S> <C> <C> <C> <C>
Debt Securities................... $400,000,000 100% $400,000,000 $137,931.03
</TABLE>
(1) In U.S. dollars or the equivalent thereof in foreign currencies or, if
Securities are issued with an original issue discount, such amount as shall
result in an aggregate offering price of all Securities equal to
$400,000,000 and the proposed maximum offering price per security shall be
correspondingly decreased.
(2) Estimated solely for the purposes of calculating the registration fee.
(3) Plus accrued interest, if any, from the date of issuance.
--------------------------
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.
--------------------------
PURSUANT TO RULE 429 OF THE SECURITIES ACT OF 1933, THE PROSPECTUS IN THIS
REGISTRATION STATEMENT ALSO RELATES TO $100 MILLION IN PRINCIPAL AMOUNT OF THE
REGISTRANT'S DEBT SECURITIES REMAINING UNDER REGISTRATION STATEMENT ON FORM S-3,
NO. 33-59562, WHICH WAS DECLARED EFFECTIVE ON JUNE 7, 1993. THE AMOUNT OF DEBT
SECURITIES BEING REGISTERED, TOGETHER WITH THE REMAINING DEBT SECURITIES
REGISTERED UNDER REGISTRATION STATEMENT ON FORM S-3, NO. 33-59562, REPRESENTS
THE MAXIMUM AMOUNT OF DEBT SECURITIES WHICH ARE EXPECTED TO BE OFFERED FOR SALE.
THIS REGISTRATION STATEMENT ALSO CONSTITUTES AMENDMENT NO. 3 TO REGISTRATION
STATEMENT ON FORM S-3, NO. 33-59562 WITH THE EFFECTIVENESS OF THIS REGISTRATION
STATEMENT ON FORM S-3, NO. 333-01303 AND IN ACCORDANCE WITH SECTION 8(C) OF THE
SECURITIES ACT OF 1933.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
EXPLANATORY NOTE
This Registration Statement contains a Prospectus relating to $500,000,000
aggregate principal amount of Debt Securities of Dresser Industries, Inc. If any
Debt Securities are thereafter offered after the effectiveness of this
Registration Statement, a Prospectus Supplement describing the particular terms
of such Debt Securities and the offering thereof will be filed in accordance
with the rules and regulations of the Securities and Exchange Commission.
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION
PROSPECTUS DATED APRIL 19, 1996
PROSPECTUS
$500,000,000
DRESSER INDUSTRIES, INC.
DEBT SECURITIES
------------------
Dresser Industries, Inc. (the "Company" or "Dresser") may offer from time to
time unsecured debt securities (the "Debt Securities") consisting of debentures,
notes or other evidences of indebtedness with an aggregate initial offering
price not to exceed $500,000,000. The Debt Securities may be offered as separate
series in amounts, at prices and on terms to be determined at the time of sale.
The specific designation, aggregate principal amount, rate (or method of
calculation) and time of payment of interest, if any, authorized denominations,
maturity, ranking, any redemption terms, any listing on a securities exchange,
the initial public offering price and other specific terms in connection with
the offering and sale of the Debt Securities in respect of which this Prospectus
is being delivered will be set forth in an applicable Prospectus Supplement.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The Debt Securities will be sold either through underwriters, dealers or
agents, or directly by the Company. The applicable Prospectus Supplement will
set forth the names of any underwriters or agents involved in the sale of the
Debt Securities in respect of which this Prospectus is being delivered, if any,
the proposed amounts, if any, to be purchased by underwriters and the
compensation, if any, of such underwriters or agents.
This Prospectus may not be used to consummate sales of Debt Securities
unless accompanied by a Prospectus Supplement.
------------------------
The date of this Prospectus is April , 1996.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements, and other
information can be inspected and copied at the offices of the Commission, 450
5th Street, N.W., Washington, D.C. 20549, Room 1024; CITICORP Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60621-2511; and Seven World Trade
Center, New York, New York 10048. Copies of such material can also be obtained
from the Public Reference Section of the Commission at 450 5th Street, N.W.,
Judiciary Plaza, Washington, D.C. 20549 at prescribed rates. Additionally,
reports, proxy statements and other information concerning Dresser can be
inspected at the offices of the New York Stock Exchange, Inc., 20 Broad Street,
New York, New York 10005 and at the offices of the Pacific Stock Exchange,
Incorporated, 301 Pine Street, San Francisco, California 94014, on which
Exchanges the Company's Common Stock is listed.
The Company has filed with the Commission a registration statement on Form
S-3 (together with all amendments, supplements, and exhibits thereto, referred
to as the "Registration Statement") under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to the Debt Securities offered hereby. This
Prospectus, which forms a part of the Registration Statement, does not contain
all the information set forth in the Registration Statement, certain parts of
which are omitted in accordance with the rules and regulations of the
Commission. For further information, reference is hereby made to the
Registration Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by the Company with the
Commission, are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for its fiscal year ended
October 31, 1995; and
2. The Company's Quarterly Report on Form 10-Q for the period ended January
31, 1996.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date hereof and prior to the termination of
the offering of the Debt Securities offered hereby shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing
of such documents.
Any statement contained in a document incorporated by reference herein shall
be deemed to be modified or superseded for purposes hereof to the extent that a
statement contained herein (or in any other subsequently filed document which
also is incorporated by reference herein) modifies or supersedes such statement.
Any statement so modified or superseded shall not be deemed to constitute a part
hereof except as so modified or superseded.
The Company will furnish without charge to each person to whom this
Prospectus is delivered, upon written or oral request, a copy of any or all of
the documents incorporated herein by reference (not including exhibits to such
documents, unless such exhibits are specifically incorporated by reference in
such documents). Requests should be addressed to: The Secretary, Dresser
Industries, Inc., P. O. Box 718, Dallas, Texas 75221, (Telephone No.
214/740-6000).
2
<PAGE>
THE COMPANY
Dresser Industries, Inc., together with its subsidiaries (hereinafter
"Dresser" or "Registrant" or the "Company"), is a supplier of highly engineered
products, technical services and project management for hydrocarbon
energy-related activities that are primarily utilized in oil and gas drilling,
production and transmission; gas distribution; power generation; gas processing;
petroleum refining and marketing; and petrochemical production. Demand for
Dresser's products and services is generally determined by global demand for
energy and oil and gas by-products. Dresser was incorporated under the laws of
Delaware in 1956 as a successor to a Pennsylvania corporation organized in 1938
by the consolidation of S. R. Dresser Manufacturing Company and Clark Bros.
Company. Both were carrying on businesses founded in 1880. Dresser's executive
offices are located at 2001 Ross Avenue, Dallas, Texas 75201 (telephone number
214/740-6000).
USE OF PROCEEDS
Unless otherwise stated in the applicable Prospectus Supplement, the Company
will use the net proceeds from the sale of Debt Securities for general corporate
purposes, including acquisitions, the reduction of short-term and long-term
borrowing, repurchase of Company securities and for other business
opportunities. Any specific allocation of the net proceeds of an offering of
Debt Securities will be described in the applicable Prospectus Supplement. The
precise amount and timing of sales of the Debt Securities will be dependent on
the Company's capital requirements, market conditions and the availability and
cost of other funds to the Company.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the consolidated ratio of earnings to fixed
charges for the Company for the periods indicated. For purposes of computing
such ratio, earnings consist of income before (i) taxes, (ii) minority
interests, (iii) extraordinary items, (iv) amortization of capitalized interest
and (v) fixed charges (adjusted to exclude capitalized interest) and after
adjustment for unremitted earnings of less than majority owned subsidiaries.
Fixed charges consist of interest on all indebtedness, amortization and debt
expense, discount and premium and a portion of rentals deemed to represent an
interest factor.
<TABLE>
<CAPTION>
3 MONTHS
ENDED JANUARY 31 YEAR ENDED OCTOBER 31
- ------------------- -----------------------------------------------------
1996 1995 1994 1993 1992 1991
- ------------------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
4.90 6.29 10.90* 4.77 2.96 4.08
</TABLE>
- ------------------------
* Ratio of 6.43 excluding gain on sale of Western Atlas International, Inc.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities are to be issued under an Indenture (the "Indenture"),
dated as of April 18, 1996 between the Company and Texas Commerce Bank National
Association, as Trustee (the "Trustee"). A copy of the Indenture is filed as an
exhibit to the Registration Statement. The following summaries of certain
provisions of the Indenture do not purport to be complete, and are subject to
and are qualified in their entirety by reference to all of the provisions of the
Indenture, including the definitions of certain terms used therein. Wherever
particular sections or defined terms of the Indenture are referred to, it is
intended that such sections or defined terms shall be incorporated herein by
reference in their entirety. Capitalized terms not defined herein shall have the
meanings given to them in the Indenture. Further terms of the Debt Securities in
respect of which this Prospectus is being delivered will be set forth in the
applicable Prospectus Supplement.
3
<PAGE>
GENERAL
Debt Securities consisting of debentures, notes and other evidences of
indebtedness ranking on a parity with all other unsecured and unsubordinated
indebtedness of the Company may be issued from time to time in series under the
Indenture. The Indenture does not limit the aggregate principal amount of Debt
Securities or of any particular series of Debt Securities which may be issued
thereunder.
Reference is made to the applicable Prospectus Supplement for the following
terms and other information with respect to the Debt Securities being offered
hereby: (i) the title of such Debt Securities; (ii) any limit on the aggregate
principal amount of such Debt Securities; (iii) the date or dates (or manner of
determining the same) on which such Debt Securities will mature; (iv) the rate
or rates (or manner of determining the same) at which such Debt Securities will
bear interest, if any, and the date or dates from which such interest will
accrue; (v) the dates (or manner of determining the same) on which such interest
will be payable and the Regular Record Dates for such Interest Payment Dates;
(vi) the place or places where the principal of and premium, if any, and
interest, if any, on such Debt Securities will be payable; (vii) the obligation
of the Company, if any, to redeem or purchase Debt Securities pursuant to any
mandatory or optional sinking fund or analogous provisions; (viii) the date, if
any, after which, and the price or prices at which, such Debt Securities are
payable pursuant to any optional or mandatory redemption provisions; (ix) the
denominations in which such Debt Securities will be issuable, if other than
denominations of $1,000 and any integral multiple thereof; (x) whether such Debt
Securities are to be issued as discounted Debt Securities; (xi) any "Events of
Default" with respect to such Debt Securities in addition to those described
herein; (xii) whether such Debt Securities are to be issued in whole or in part
in the form of one or more global securities ("Global Securities") and, if so,
the identity of the depositary, if any, for such Global Securities; and (xiii)
the identity of any trustee, authenticating agent, paying agent or registrar
with respect to such Debt Securities, if other than the Trustee; and (xiv) other
specific terms of such Debt Securities.
Unless otherwise indicated in the applicable Prospectus Supplement,
principal of and premium, if any, and interest, if any, on the Debt Securities
will be payable, and the transfer of the Debt Securities will be registrable, at
the office or agency of the Trustee in Dallas, Texas or New York, New York,
except that, at the option of the Company, interest may be paid by mailing a
check to the person entitled thereto as it appears on the Security Register.
(SECTIONS 2.03, 4.06 AND 10.11) No service charge will be made to any Holder for
any transfer or exchange of Debt Securities, except that the Company may require
payment of a sum sufficient to cover any tax or other governmental charge which
may be imposed in relation thereto. (SECTION 2.06)
Some or all of the Debt Securities may be issued as discounted Debt
Securities (bearing no interest or bearing interest at a rate which at the time
of issuance is below market rates) to be sold at a substantial discount below
their stated principal amount. Federal income tax consequences and other special
considerations applicable to any such discounted Debt Securities will be
described in the applicable Prospectus Supplement.
There are no covenants or provisions contained in the Indenture which may
afford Holders of Debt Securities protection in the event of a restructuring or
other highly leveraged transaction involving the Company.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Securities that will be deposited with or on behalf
of a depositary located in the United States (a "Depositary") identified in the
Prospectus Supplement relating to such series. (SECTIONS 1.01 AND 2.01)
BOOK-ENTRY DEBT SECURITIES
Unless otherwise indicated in the applicable Prospectus Supplement, Debt
Securities which are to be represented by a Global Security to be deposited with
or on behalf of a Depositary will be
4
<PAGE>
represented by a Global Security registered in the name of such Depositary or
its nominee. Upon the issuance of a Global Security in registered form, the
Depositary for such Global Security will credit, on its book-entry registration
and transfer system, the respective principal amounts of the Debt Securities
represented by such Global Security to the accounts of institutions that have
accounts with such Depositary or its nominee ("participants"). The accounts to
be credited shall be designated by the underwriters or agents of such Debt
Securities or by the Company, if such Debt Securities are offered and sold
directly by the Company. Ownership of beneficial interests in such Global
Securities will be limited to participants or persons that may hold interests
through participants. Ownership of beneficial interests by participants in such
Global Securities will be shown on, and the transfer of such ownership interests
will be effected only through, records maintained by the Depositary or its
nominee for such Global Security. Ownership of beneficial interests in Global
Securities by persons that hold through participants will be shown on, and the
transfer of such ownership interests within such participant will be effected
only through records maintained by such participant. The laws of some
jurisdictions require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such laws may impair the ability
to transfer beneficial interests in a Global Security.
So long as the Depositary for a Global Security in registered form, or its
nominee, is the registered owner of such Global Security, such Depositary or
such nominee, as the case may be, will be considered the sole owner or holder of
the Debt Securities represented by such Global Security for all purposes under
the Indenture governing such Debt Securities. Except as set forth below, owners
of beneficial interests in such Global Securities will not be entitled to have
Debt Securities of the series represented by such Global Security registered in
their names, will not receive or be entitled to receive physical delivery of
Debt Securities of such series in definitive form and will not be considered the
owners or holders thereof under the Indenture.
Payment of principal of and premium, if any, and interest, if any, on Debt
Securities registered in the name of or held by a Depositary or its nominee will
be made to the Depositary or its nominee, as the case may be, as the registered
owner or holder of the Global Security representing such Debt Securities. None
of the Company, the Trustee, any Paying Agent or the Registrar for such Debt
Securities will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in a Global Security for such Debt Securities or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
The Company expects that the Depositary for Debt Securities of a particular
series, upon receipt of any payment of principal of and premium, if any, and
interest, if any, on a Global Security, will immediately credit participants'
accounts with payments in amounts proportionate to their respective beneficial
interests in the principal amount of such Global Security as shown on the
records of such Depositary. The Company also expects that payments by
participants to owners of beneficial interests in such Global Security held
through such participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts of
customers in bearer form or registered in "street name," and will be the
responsibility of such participants. However, the Company has no control over
the practices of the Depositary or the participants and there can be no
assurance that these practices will not be changed.
A Global Security may not be transferred except as a whole by the Depositary
for such Global Security to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a successor of such Depositary or a nominee of
such successor. If a Depositary for Debt Securities of a particular series is at
any time unwilling or unable to continue as Depositary and a successor
Depositary is not appointed by the Company within 90 days, the Company will
issue Debt Securities in definitive registered form in exchange for the Global
Security or Securities representing such Debt Securities. In addition, the
Company may at any time and in its sole discretion determine not to have any
Debt Securities in definitive registered form in exchange for the Global
Securities representing such Debt Securities. In any such instance, an owner of
a beneficial interest in a Global Security will be entitled to physical
5
<PAGE>
delivery in definitive form of Debt Securities of the series represented by such
Global Security equal in principal amount to such beneficial interest and to
have such Debt Securities registered in its name. (SECTION 2.10)
RESTRICTED SUBSIDIARIES
The various restrictive provisions of the Indenture apply to the Company and
its Restricted Subsidiaries. The term "Restricted Subsidiary" is defined under
the Indenture to include any Subsidiary existing as of the date of the Indenture
or any corporation that is the successor to such a Subsidiary. The term
"Subsidiary" is defined under the Indenture to mean any corporation of which at
least a majority of the outstanding capital stock having ordinary voting power
to elect a majority of the board of directors of said corporation is at the time
owned by the Company or by the Company and one or more Subsidiaries or by one or
more Subsidiaries. (SECTION 1.01) As a result of the definitions of the terms
"Restricted Subsidiary" and "Subsidiary" in the Indenture, the restrictive
provisions of the Indenture will not apply to (i) any corporation coming into
existence or acquired after the date of the Indenture or (ii) any partnership or
other entity that is not organized as a corporation, in each case regardless of
whether such corporation, partnership or other entity is controlled by the
Company or whether the Company owns a majority of the outstanding capital stock
of or other equity interests in such corporation, partnership or other entity.
As of the date of this Prospectus, a material portion of the business of the
Company is conducted through partnerships.
RESTRICTIONS ON SECURED DEBT
The Indenture provides that the Company will not, and will not cause or
permit a Restricted Subsidiary to, create, incur, assume or guarantee any
Secured Debt unless the Debt Securities will be secured equally and ratably with
(or prior to) such Secured Debt, with certain exceptions. The foregoing
restrictions do not prohibit the creation, incurrence, assumption or guarantee
of Secured Debt which is secured by (i) certain Security Interests to secure
payment of the cost of acquisition, construction, development or improvement of
property, (ii) Security Interests on property at the time of its acquisition by
the Company or a Restricted Subsidiary, which Security Interests secure
obligations assumed by the Company or a Restricted Subsidiary, or on the
property of a corporation or other entity at the time it is merged into the
Company or a Restricted Subsidiary (other than any Security Interests created in
contemplation of the acquisition of such property or the consummation of such a
merger), (iii) Security Interests arising from conditional sales agreements or
title retention agreements with respect to property acquired by the Company or a
Restricted Subsidiary and (iv) Security Interests securing Indebtedness of a
Restricted Subsidiary owing to the Company or to another Restricted Subsidiary.
Additionally, such permitted Secured Debt includes any extension, renewal or
refunding, in whole or in part, of Secured Debt permitted at the time of the
original incurrence thereof. (SECTION 4.03)
In addition to the foregoing, the Company and its Restricted Subsidiaries
may create, incur, assume or guarantee Secured Debt, without equally and ratably
securing the Debt Securities, if immediately thereafter the sum of (i) the
aggregate principal amount of all Secured Debt outstanding (excluding Secured
Debt permitted under clauses (i) through (iv) of the immediately preceding
paragraph) and (ii) all Attributable Debt (as hereinafter defined) in respect of
Sale and Leaseback Transactions (as hereinafter defined) as of the date of
determination would not exceed 10% of Consolidated Net Tangible Assets. (SECTION
4.03)
The term "Consolidated Net Tangible Assets" is defined under the Indenture
to mean the total amount of assets which would be included on a consolidated
balance sheet of the Company and its subsidiaries under generally accepted
accounting principles (less applicable reserves and other properly deductible
terms) after deducting therefrom: (i) all short-term liabilities, except for
liabilities payable by their terms more than one year from the date of
determination (or renewable or extendible at the option of the obligor for a
period ending more than one year after such date) and liabilities in respect of
retiree benefits other than pensions and postemployment benefits for which the
Company is required to accrue pursuant to Statement of Financial Accounting
Standards No. 106 and No. 112,
6
<PAGE>
respectively, and (ii) all goodwill, trade names, trademarks, patents,
unamortized debt discount, unamortized expense incurred in the issuance of debt
and other intangible assets. (SECTION 1.01) The term "Consolidated Net Tangible
Assets" includes the assets of majority owned partnerships that do not
constitute Restricted Subsidiaries. See "-- Restricted Subsidiaries."
The term "Secured Debt" is defined under the Indenture to include any
indebtedness for borrowed money of, or upon which interest is payable by, the
Company or any Restricted Subsidiary or any such indebtedness of others
guaranteed by the Company or any Restricted Subsidiary which is secured by (i) a
Security Interest in any property of the Company or any Restricted Subsidiary or
(ii) a Security Interest in shares of stock owned by the Company or a Restricted
Subsidiary in a corporation or in equity interests owned by the Company or a
Restricted Subsidiary in a partnership or other entity not organized as a
corporation or in the rights of the Company or a Restricted Subsidiary in
respect of indebtedness for money borrowed by a corporation, partnership or
other entity in which the Company or a Restricted Subsidiary has an equity
interest. The securing in the foregoing manner of any such indebtedness which
immediately prior thereto was not Secured Debt shall be deemed to be the
creation of Secured Debt at the time security is given.
RESTRICTIONS ON SALE AND LEASEBACK TRANSACTIONS
The Indenture provides that the Company will not, and will not permit any
Restricted Subsidiary to, enter into any Sale and Leaseback Transaction, unless
(i) the Company or such Restricted Subsidiary would be entitled to incur Secured
Debt permitted by the Indenture (other than by reason of provisions described in
clauses (i) through (iv) of the first paragraph under "-- Restrictions on
Secured Debt") in an amount equal to the Attributable Debt in respect of such
Sale and Leaseback Transaction without equally and ratably securing the Debt
Securities or (ii) notice is promptly given to the Trustee of the Sale and
Leaseback Transaction, fair value is received by the Company or a Restricted
Subsidiary for the property sold (as determined in good faith pursuant to a
Board Resolution delivered to the Trustee) and the Company or a Restricted
Subsidiary applies or commits to apply an amount equal to the net proceeds of
the property sold pursuant to the Sale and Leaseback Transaction to the
redemption of Debt Securities of any series or the retirement of other Funded
Debt of the Company or any Restricted Subsidiary not subordinate or junior in
right of payment to the Debt Securities. In lieu of applying all or any part of
such amount to the redemption of Debt Securities or the retirement of Funded
Debt, the Company may deliver Debt Securities to the Trustee for cancellation
and thereby reduce the amount to be applied to the redemption of Debt Securities
or retirement of Funded Debt by an amount equal to the aggregate principal
amount of Debt Securities delivered. (SECTION 4.04)
The term "Attributable Debt" is defined under the Indenture to mean, in
respect of a Sale and Leaseback Transaction, the present value (discounted at
the weighted average effective interest rate per annum of the outstanding Debt
Securities, of all series, compounded semi-annually) of the obligation of the
lessee for rental payments during the remaining term of the lease included in
such transaction, including any period for which such lease has been extended or
may, at the option of the lessor, be extended or, if earlier, until the earliest
date on which the lessee may terminate such lease upon payment of a penalty (in
which case the obligation of the lessee for rental payments shall include such
penalty), after excluding all amounts required to be paid on account of
maintenance and repairs, insurance, taxes, assessments, water and utility rates
and similar charges. (SECTION 1.01)
The term "Sale and Leaseback Transaction" is defined under the Indenture to
include a sale or transfer made by the Company or a Restricted Subsidiary
(except a sale or transfer made to the Company or another Restricted Subsidiary)
of any property if such sale or transfer is made with the intention of leasing
such property to the Company or a Restricted Subsidiary, except (i) a lease for
a period not exceeding 60 months and (ii) a lease that secures or relates to
certain governmental obligations issued in connection with the financing of the
cost of construction or acquisition of such property. (SECTION 1.01)
7
<PAGE>
RESTRICTIONS ON MERGERS, CONSOLIDATIONS AND TRANSFERS OF ASSETS
The Indenture provides that the Company will not consolidate or merge into
or sell, assign, transfer or lease all or substantially all of its assets to
another person unless (i) the person is a corporation organized under the laws
of the United States of America or any state thereof, (ii) the person assumes by
supplemental indenture all the obligations of the Company relating to the Debt
Securities and the Indenture and (iii) immediately after the transactions no
Default exists. Upon any such consolidation, merger, sale, assignment or
transfer, the successor corporation will be substituted for the Company under
the Indenture. The successor corporation may then exercise every power and right
of the Company under the Indenture, and the Company will be released from all of
its liabilities and obligations in respect of the Debt Securities and the
Indenture. In the event the Company leases all or substantially all of its
assets, the lessee corporation will be the successor to the Company and may
exercise every power and right of the Company under the Indenture, but the
Company will not be released from its obligations to pay the principal of and
premium, if any, and interest, if any, on the Debt Securities. (SECTION 5.01)
AMENDMENTS OF THE INDENTURE
Amendments of the Indenture or the Debt Securities of any series may be made
by the Company and the Trustee without the consent of the Holders of such Debt
Securities (i) to cure any ambiguity, defect or inconsistency or to make such
provisions with respect to matters or questions arising under the Indenture as
may be necessary or desirable and not inconsistent with the Indenture or with
any indenture supplemental thereto or any Board Resolution establishing any
series of Debt Securities, provided that such amendment does not adversely
affect the rights of the Holders thereof, (ii) to comply with the merger or sale
of assets provision in the Indenture, (iii) to add additional covenants, (iv) to
establish the form or terms of Debt Securities of any additional series, (v) to
provide for the acceptance of appointment of a successor Trustee or (vi) to
provide for the issuance of Debt Securities with interest coupons with respect
to any such series or (vii) to provide for the exchange of Global Securities for
Debt Securities issued in definitive form and to make all appropriate changes
for such purpose. (SECTION 9.01)
Amendments of the Indenture affecting the Debt Securities of any series or
amendments of the Debt Securities themselves of such series may be made by the
Company and the Trustee with the consent of the Holders of 66 2/3% in aggregate
principal amount of the Debt Securities of such series, provided that, without
the consent of each Holder affected, no such amendment shall be made which will
(i) reduce the percentage in principal amount of the Debt Securities whose
Holders must consent to an amendment, (ii) reduce the rate of or change the time
for payment of interest on any Debt Security, (iii) reduce the principal of,
change the Stated Maturity of, reduce the amount payable on redemption of or
alter the requirements with respect to the mandatory redemption, if any, of any
Debt Security, (iv) make any Debt Security payable in money other than that
stated in such Debt Security or (v) make any change in the Indenture provisions
with respect to waiver of existing Defaults, rights of Holders to receive
payment and to bring suit for the enforcement of such rights, or the requirement
of obtaining the written consent of each affected Holder to certain amendments
of the Indenture or any Debt Security. (SECTION 9.02)
EVENTS OF DEFAULT
An "Event of Default" with respect to any series of Debt Securities is
defined under the Indenture to include: (i) failure for 30 days to pay any
interest on any Debt Security of such series when due, (ii) failure to pay the
principal of and premium, if any, of any Debt Security of such series when due,
(iii) failure for 90 days after receipt of notice to perform any other agreement
of the Company with respect to Debt Securities of such series or the Indenture
for the benefit of Debt Securities of such series, (iv) a default under any
bond, indenture, note or other evidence of indebtedness for money borrowed by
the Company or a Restricted Subsidiary or under any mortgage, indenture or
instrument under which there may be issued, or by which there may be secured or
evidenced, any such indebtedness with a principal amount then outstanding in
excess of $25,000,000, which default shall constitute a failure to pay any
portion of the principal of such indebtedness when due or shall result in the
8
<PAGE>
acceleration of such indebtedness, (v) certain events of bankruptcy, insolvency
or reorganization of the Company or a Material Subsidiary and (vi) any other
event established as an event of default in accordance with the Indenture with
respect to Debt Securities of such series. (SECTION 6.01)
The term "Material Subsidiary" is defined under the Indenture to mean any
consolidated subsidiary of the Company (whether a corporation or a partnership
or other entity not organized as a corporation) if such consolidated subsidiary
would be deemed as of the date of determination a "significant subsidiary" under
the rules of the Securities and Exchange Commission. (SECTION 1.01)
The Indenture provides that the Trustee will, within 90 days after the
occurrence of a Default in respect of any series of Debt Securities, give to the
Holders of the Debt Securities of such series notice of all uncured and unwaived
Defaults known to it; provided, however, that, except in the case of a Default
in the payment of the principal of or any interest on any of the Debt Securities
of such series, such Trustee may withhold such notice if it in good faith
determines that the withholding of such notice is in the interest of the Holders
of the Debt Securities of such series. (SECTION 7.05)
If an Event of Default shall occur and be continuing with respect to any
series of Debt Securities, the Trustee may proceed to protect and enforce its
rights and those of the Holders of Debt Securities of such series. (SECTION
6.03) If any Event of Default shall occur and be continuing with respect to any
series of Debt Securities, either the Trustee or the Holders of at least 25% in
principal amount of the Debt Securities of such series may declare the principal
of and accrued interest on all the Debt Securities of such series to be due and
payable. The Holders of a majority in principal amount of the Debt Securities of
such series may rescind an acceleration and its consequences, but only if all
existing Events of Default with respect to the Debt Securities of such series
have been cured or waived, except nonpayment of principal or interest that has
become due solely because of the acceleration. (SECTION 6.02) The Holders of a
majority in principal amount outstanding of the Debt Securities of such series
may direct the Trustee as to the time, method and place of pursuing any remedy
available to it or exercising any trust or power conferred on it with respect to
the Debt Securities of such series and may waive any existing Default with
respect to the Debt Securities of such series, except a Default in the payment
of principal of or interest on any Debt Security of such series. (SECTIONS 6.04
AND 6.05)
The Company is required to furnish to the Trustee annually a statement as to
the absence of a Default. (SECTION 4.05)
DEFEASANCE OF THE INDENTURE AND DEBT SECURITIES
The Company may at any time satisfy its obligations with respect to payments
of principal of and premium, if any, and interest, if any, on the Debt
Securities of any series by irrevocably depositing in trust with the Trustee
money or U.S. Government Obligations or a combination thereof sufficient to make
such payments when due without reinvestment thereof. If such a deposit is
sufficient to make all payments of (i) interest, if any, on the Debt Securities
of such series prior to and on their redemption or maturity, as the case may be,
and (ii) principal of and premium, if any, on the Debt Securities of such series
when due upon redemption or at Stated Maturity, as the case may be, then all the
obligations of the Company with respect to the Debt Securities of such series
and the Indenture insofar as it relates to the Debt Securities of such series
will be satisfied and discharged (except as otherwise provided in the
Indenture). In the event of any such defeasance, Holders of the Debt Securities
of such series would be able to look only to such trust fund for payment of
principal of and premium, if any, and interest, if any, on the Debt Securities
of such series until Stated Maturity or redemption. (SECTIONS 8.01, 8.02 AND
8.03)
Such a Trust may only be established if, among other things, (i) the Company
has obtained an opinion of legal counsel (which may be based on a ruling from,
or published by, the Internal Revenue Service) to the effect that Holders of the
Debt Securities of such series will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to federal income tax on the same amounts and in
the same manner and at the same times as
9
<PAGE>
would have been the case if such deposit, defeasance and discharge had not
occurred and (ii) at that time, with respect to any series of Debt Securities
then listed on The New York Stock Exchange, the rules of The New York Stock
Exchange do not prohibit such deposit with the Trustee. (SECTION 8.02)
ANNUAL REPORTS BY THE TRUSTEE
To the extent required by the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), the Trustee shall, within 60 days after May 15 in each
year, furnish to each Holder of Debt Securities an annual report that complies
with Section 313 of the Trust Indenture Act. (SECTION 7.06) The Indenture does
not require that the Company or the Trustee furnish any other reports, documents
or information to the Holders of Debt Securities.
NOTICES AND COMMUNICATIONS
Notices or communications to Holders of Debt Securities will be given by
first-class mail or by overnight air courier to the addresses of such Holders as
they appear in the Security Register. (SECTION 10.02)
Holders of Debt Securities may communicate with other Holders with respect
to their rights under the Indenture or the Debt Securities pursuant to the
provisions of Section 312(b) of the Trust Indenture Act which require a trustee
to provide security holders access to information regarding the addresses of
other security holders in certain situations. (SECTION 10.03)
GOVERNING LAW
The Indenture and the Debt Securities will be governed by and construed in
accordance with the laws of the State of Texas. (SECTION 10.13)
INFORMATION CONCERNING THE TRUSTEE
The Trustee under the Indenture is Texas Commerce Bank National Association.
The Company maintains deposit accounts and banking relations with Texas Commerce
Bank National Association.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities being offered hereby: (i) directly
to purchasers, (ii) through agents, (iii) through underwriters, (iv) through
dealers, or (v) through a combination of any such methods of sale.
The distribution of the Debt Securities may be effected from time to time in
one or more transactions either (i) at a fixed price or prices, which may be
changed, (ii) at market prices prevailing at the time of sale; (iii) at prices
related to such prevailing market prices; or (iv) at negotiated prices.
Offers to purchase Debt Securities may be solicited directly by the Company
or by agents designated by the Company from time to time. Any such agent, which
may be deemed to be an underwriter, as that term is defined in the Securities
Act, involved in the offer or sale of the Debt Securities in respect of which
this Prospectus is delivered will be named, and any commissions payable by the
Company to such agent will be set forth, in the Prospectus Supplement or the
Pricing Supplement. Unless otherwise indicated in the Prospectus Supplement or
the Pricing Supplement, any such agent will be acting on a best efforts basis
for the period of its appointment. Agents may be customers of, engaged in
transactions with, or perform services for, the Company in the ordinary course
of business.
If an underwriter or underwriters are utilized in the sale, the Company will
execute an underwriting agreement with such underwriter or underwriters at the
time of sale to them and the names of the underwriters and the terms of the
transactions will be set forth in the Prospectus Supplement, which will be used
by the underwriters to make resales of the Debt Securities.
If a dealer is utilized in the sale of the Debt Securities in respect of
which this Prospectus is delivered, the Company will sell such Debt Securities
to the dealer, as principal. The dealer may then resell such Debt Securities to
the public at varying prices to be determined by such dealer at the time of
resale.
10
<PAGE>
Underwriters, dealers, agents, and other persons may be entitled, under
agreements which may be entered into with the Company, to indemnification
against, or contribution with respect to, certain civil liabilities, including
liabilities under the Securities Act.
Underwriters and agents may engage in transactions with, or perform services
for, the Company in the ordinary course of business.
LEGAL MATTERS
The validity of the Debt Securities offered hereby will be passed upon by
Rebecca R. Morris, Vice President -- Corporate Counsel and Secretary of the
Company (who owns 9,200 shares of the Company's Common Stock and holds options
to purchase an additional 24,750 shares of such common stock coupled with 4,909
restrictive incentive stock awards.).
EXPERTS
The consolidated financial statements incorporated in this Prospectus by
reference to the Annual Report on Form 10-K of Dresser Industries, Inc. and its
subsidiaries for the year ended October 31, 1995 have been so incorporated in
reliance on the report of Price Waterhouse LLP, independent accountants, given
on the authority of said firm as experts in auditing and accounting.
11
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is a statement of the estimated expenses incurred by the
Company in connection with the issuance and distribution of the securities being
registered pursuant to this Registration Statement, other than any applicable
underwriting discounts.
<TABLE>
<CAPTION>
AMOUNT
--------------
<S> <C>
Securities and Exchange Commission Registration Fee.................................... $ 137,931.03
*Trustee Fees and Expenses.............................................................. 11,000.00
*Printing and Engraving Expenses........................................................ 25,000.00
*Legal Fees and Expenses................................................................ 25,000.00
*Accounting Fees and Expenses........................................................... 25,000.00
*Transfer Agent and Registrar Fees and Expenses......................................... 5,000.00
*Blue Sky Fees and Expenses (including legal fees and expenses)......................... 6,500.00
*Miscellaneous.......................................................................... 5,000.00
--------------
Total............................................................................... $ 240,431.03
--------------
--------------
</TABLE>
- ------------------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Pursuant to Section 145 of the Delaware General Corporation Law ("DGCL"), a
corporation may indemnify any person who is or was a party or is threatened to
be made a party to any action, suit, or proceeding (other than an action by or
in the right of the corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the corporation or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement, actually and reasonably incurred by him in connection with such
action, suit or proceeding if he 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, with respect to any criminal proceeding, had no reasonable
cause to believe his conduct was unlawful. In an action by or in the right of
the Company, a corporation may indemnify any such person against expenses
actually and reasonably incurred by him in connection with the defense or
settlement of such action if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification shall be made in respect of any
claim or issue as to which such person is adjudged to be liable to the
corporation unless and only to the extent that the Delaware Court of Chancery or
the court in which such action was brought shall determine that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses, which
the court shall deem proper. Indemnification, unless ordered by the court, shall
be made by the corporation only as authorized in the specific case upon a
determination that indemnification of such person is proper in the circumstances
because he has met the applicable standard of conduct. Such determination is
made (1) by the board of directors by a majority vote of a quorum consisting of
disinterested directors, or (2) by independent legal counsel in a written
opinion, or (3) by the stockholders. To the extent that a director, officer,
employee or agent of a corporation has been successful on the merits or
otherwise in defense of any such matter, Section 145 requires that the
corporation indemnify him against expenses actually and reasonably incurred by
him in his defense. Further, expenses may be paid by the corporation in advance
of final disposition of the matter upon receipt of an undertaking by or on
behalf of such director, officer, employee or agent to repay such amount if it
shall ultimately be determined that he is not entitled to be indemnified. Such
indemnification and advancement of expenses is not deemed exclusive of any other
right to which a director or officer might be entitled under any by-law,
agreement, vote of stockholders or disinterested directors
II-1
<PAGE>
or otherwise. Section 145 also empowers a corporation to purchase and maintain
insurance on behalf of any person who might be indemnified thereunder whether or
not the corporation would have the power to indemnify him against such liability
under such Section.
The Company's Restated Certificate of Incorporation, as amended, provides
for indemnification of certain persons including directors and officers to the
fullest extent permitted under Section 145 of the Delaware General Corporation
Law.
Insurance is maintained by the Company covering certain expenses, liability
or losses which may be incurred by reason of his being a director or officer of
the Company or a subsidiary corporation, partnership, joint venture, trust or
other enterprise.
ITEM 16. EXHIBITS
The Exhibits are listed in the Exhibit Index immediately preceding the
Exhibits.
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of 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;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the registration statement is on Form S-3 or Form S-8 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 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.
(c) The undersigned registrant hereby undertakes that: (1) for purposes of
determining any liability under the Securities Act, the information omitted from
the form of prospectus filed as part of this registration statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933
shall be deemed to be part of this registration statement as of the time it was
declared effective; and (2) for the
II-2
<PAGE>
purpose of determining any liability under the Securities Act of 1933, each
post-effective amendment that contains a form of prospectus shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(d) The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of section 310 of the Trust Indenture Act ("Act") in accordance
with the rules and regulations prescribed by the Commission under section
305(b)(2) of the Act.
(e) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed by the Securities Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3, that the security rating requirement will
be met by the time of sale of the securities offered pursuant to this
registration statement, and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized in the City
of Dallas, State of Texas, on April 18, 1996.
DRESSER INDUSTRIES, INC.
By: /s/ GEORGE H. JUETTEN
-----------------------------------
George H. Juetten,
VICE PRESIDENT -- CONTROLLER
Pursuant to the requirements of the Securities Exchange Act of 1933, this
report has been signed below by the following persons on behalf of the
Registrant and in the capacities indicated on April 18, 1996.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------------------------------ ------------------------------------------------------
<C> <S>
*WILLIAM E. BRADFORD
------------------------------------------- Chief Executive Officer and Director (Principal
(William E. Bradford, Director) Executive Officer)
/s/ GEORGE H. JUETTEN
------------------------------------------- Vice President -- Controller
(George H. Juetten) (Principal Accounting Officer)
*B. D. ST. JOHN
------------------------------------------- Vice Chairman of the Board and Director
(B. D. St. John, Director) (Principal Financial Officer)
*SAMUEL B. CASEY, JR.
-------------------------------------------
(Samuel B. Casey, Jr., Director)
*LAWRENCE S. EAGLEBURGER
-------------------------------------------
(Lawrence S. Eagleburger, Director)
*SYLVIA A. EARLE
-------------------------------------------
(Sylvia A. Earle, Ph.D., Director)
*RAWLES FULGHAM
-------------------------------------------
(Rawles Fulgham, Director)
*JOHN A. GAVIN
-------------------------------------------
(John A. Gavin, Director)
*RAY L. HUNT
-------------------------------------------
(Ray L. Hunt, Director)
*J. LANDIS MARTIN
-------------------------------------------
(J. Landis Martin, Director)
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------------------------------ ------------------------------------------------------
<C> <S>
*JOHN J. MURPHY
-------------------------------------------
(John J. Murphy, Chairman of the Board
and Director)
*LIONEL H. OLMER
-------------------------------------------
(Lionel H. Olmer, Director)
*JAY A. PRECOURT
-------------------------------------------
(Jay A. Precourt, Director)
*RICHARD W. VIESER
-------------------------------------------
(Richard W. Vieser, Director)
*By: /s/ ALICE A. HINDS
--------------------------------------
Alice A. Hinds
(ATTORNEY-IN-FACT)
</TABLE>
II-5
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -------------------------------------------------------------------------------------
<S> <C> <C>
*4 Form of Indenture.
*5 Form of opinion of Rebecca R. Morris as to the legality of the securities being
registered.
*12 Statement of computation of ratio of earnings to fixed charges.
*23.1 Consent of Rebecca R. Morris is contained in her opinion attached as Exhibit 5.
*23.2 Consent of Price Waterhouse LLP.
*24 Powers of Attorney.
Powers of Attorneys for Messrs. Casey and Vieser and Dr. Earle.
*25 Statement as to Eligibility of the Trustee under the Trust Indenture Act of 1939, as
amended, on Form T-1.
27 Financial Data Schedule is contained in Exhibit 27 to the Company's Quarterly Report
on Form 10-Q for the quarter ended January 31, 1996. (Pursuant to Item 601(c)(iv) of
Regulation S-K, the Financial Data Schedule is not deemed to be "filed" for purposes
of Section 11 of the Securities Act of 1933, as amended, or Section 18, of the
Securities Exchange Act of 1934, as amended.)
</TABLE>
- ------------------------
* Filed herewith.
<PAGE>
- -------------------------------------------------------------
- -------------------------------------------------------------
DRESSER INDUSTRIES, INC.
AND
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION, Trustee
____________________
INDENTURE
DATED AS OF APRIL 18, 1996
____________________
Unsecured Debentures, Notes and Other
Evidences of Indebtedness
- -------------------------------------------------------------
- -------------------------------------------------------------
<PAGE>
CROSS-REFERENCE TABLE
TIA SECTION INDENTURE SECTION
- ----------- -----------------
310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08; 7.10; 10.02
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . 10.03
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . 10.03
313(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . 10.02
(d). . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
314(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 4.02; 4.05; 10.02
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 10.04
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 10.04
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . N.A
(d). . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e). . . . . . . . . . . . . . . . . . . . . . . . . . . 10.05
(f). . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
315(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(b)
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . 7.05; 10.02
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(a)
(d). . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(c)
(e). . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316(a)(last sentence) . . . . . . . . . . . . . . . . . . . 2.09
(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . 6.05
(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . 6.04
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . 10.12
317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
318(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 10.01
N.A. means Not Applicable.
<PAGE>
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions. . . . . . . . . . . . . . . . 1
SECTION 1.02. Other Definitions. . . . . . . . . . . . . 6
SECTION 1.03. Incorporation by Reference of Trust
Indenture Act . . . . . . . . . . . . . . 6
SECTION 1.04. Rules of Construction. . . . . . . . . . . 7
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating. . . . . . . . . . . . . . 7
SECTION 2.02. Execution and Authentication . . . . . . . 9
SECTION 2.03. Registrar and Paying Agent . . . . . . . . 12
SECTION 2.04. Paying Agent to Hold Money in Trust. . . . 12
SECTION 2.05. Securityholder Lists . . . . . . . . . . . 12
SECTION 2.06. Transfer and Exchange. . . . . . . . . . . 13
SECTION 2.07. Replacement Securities . . . . . . . . . . 13
SECTION 2.08. Outstanding Securities . . . . . . . . . . 14
SECTION 2.09. Required Principal Amount. . . . . . . . . 14
SECTION 2.10. Temporary Securities; Global Securities. . 14
SECTION 2.11. Cancellation . . . . . . . . . . . . . . . 17
SECTION 2.12. Defaulted Interest . . . . . . . . . . . . 17
ARTICLE 3
REDEMPTION; SINKING FUND
SECTION 3.01. Notices to Trustee . . . . . . . . . . . . 17
SECTION 3.02. Selection of Securities to be Redeemed . . 18
SECTION 3.03. Notice of Redemption . . . . . . . . . . . 18
SECTION 3.04. Effect of Notice of Redemption . . . . . . 19
SECTION 3.05. Deposit of Redemption Price. . . . . . . . 19
SECTION 3.06. Securities Redeemed in Part. . . . . . . . 19
SECTION 3.07. Sinking Fund . . . . . . . . . . . . . . . 19
SECTION 3.08. Terms of Securities to Govern. . . . . . . 20
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ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Securities. . . . . . . . . . . 21
SECTION 4.02. SEC Reports. . . . . . . . . . . . . . . . 21
SECTION 4.03. Restriction on Creation of Secured Debt. . 21
SECTION 4.04. Restriction on Sale and Leaseback
Transactions. . . . . . . . . . . . . . . 23
SECTION 4.05. Certificate to Trustee . . . . . . . . . . 24
SECTION 4.06. Maintenance of Office or Agency. . . . . . 24
SECTION 4.07. Further Assurances . . . . . . . . . . . . 24
ARTICLE 5
SUCCESSORS
SECTION 5.01. When Company May Merge, etc. . . . . . . . 25
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default. . . . . . . . . . . . . 25
SECTION 6.02. Acceleration . . . . . . . . . . . . . . . 27
SECTION 6.03. Other Remedies . . . . . . . . . . . . . . 27
SECTION 6.04. Waiver of Past Defaults. . . . . . . . . . 28
SECTION 6.05. Control by Majority. . . . . . . . . . . . 28
SECTION 6.06. Limitation on Suits. . . . . . . . . . . . 28
SECTION 6.07. Rights of Holders to Receive Payment . . . 29
SECTION 6.08. Collection Suit by Trustee . . . . . . . . 29
SECTION 6.09. Trustee May File Proofs of Claim . . . . . 29
SECTION 6.10. Priorities . . . . . . . . . . . . . . . . 29
SECTION 6.11. Undertaking for Costs. . . . . . . . . . . 30
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee. . . . . . . . . . . . . 30
SECTION 7.02. Rights of Trustee. . . . . . . . . . . . . 31
SECTION 7.03. Individual Rights of Trustee . . . . . . . 32
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SECTION 7.04. Trustee's Disclaimer . . . . . . . . . . . 32
SECTION 7.05. Notice of Defaults . . . . . . . . . . . . 32
SECTION 7.06. Reports by Trustee to Holders. . . . . . . 33
SECTION 7.07. Compensation and Indemnity . . . . . . . . 33
SECTION 7.08. Replacement of Trustee . . . . . . . . . . 34
SECTION 7.09. Successor Trustee by Merger, etc.. . . . . 36
SECTION 7.10. Eligibility, Disqualification. . . . . . . 36
SECTION 7.11. Preferential Collection of Claims Against
Company . . . . . . . . . . . . . . . . . 36
ARTICLE 8
DISCHARGE OF INDENTURE AND SECURITIES
SECTION 8.01. Satisfaction and Discharge of Indenture. . 36
SECTION 8.02. Defeasance . . . . . . . . . . . . . . . . 37
SECTION 8.03. Satisfaction and Discharge of Securities . 38
SECTION 8.04. Application by Trustee of Money or U.S.
Government Obligations. . . . . . . . . . 38
SECTION 8.05. Repayment of Money or U.S. Government
Obligations by Paying Agent . . . . . . . 38
SECTION 8.06. Return of Money, Securities or U.S.
Government Obligations. . . . . . . . . . 38
SECTION 8.07 Reinstatement. . . . . . . . . . . . . . . 39
ARTICLE 9
AMENDMENTS
SECTION 9.01. Without Consent of Holders . . . . . . . . 39
SECTION 9.02. With Consent of Holders. . . . . . . . . . 40
SECTION 9.03. Compliance with Trust Indenture Act. . . . 40
SECTION 9.04. Effect of Consents . . . . . . . . . . . . 40
SECTION 9.05. Notation on or Exchange of Securities. . . 41
SECTION 9.06. Trustee Protected. . . . . . . . . . . . . 41
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. Trust Indenture Act Controls. . . . . . . 41
SECTION 10.02. Notices . . . . . . . . . . . . . . . . . 41
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SECTION 10.03. Communications by Holders with Other
Holders. . . . . . . . . . . . . . . . . 42
SECTION 10.04. Certificate and Opinion as to Conditions
Precedent. . . . . . . . . . . . . . . . 42
SECTION 10.05. Statements Required in Certificate or
Opinion. . . . . . . . . . . . . . . . . 42
SECTION 10.06. Rules by Trustee and Agents . . . . . . . 43
SECTION 10.07. Legal Holidays. . . . . . . . . . . . . . 43
SECTION 10.08. No Recourse Against Others. . . . . . . . 44
SECTION 10.09. Interest Limitation . . . . . . . . . . . 44
SECTION 10.10. Duplicate Originals . . . . . . . . . . . 44
SECTION 10.11. Addresses . . . . . . . . . . . . . . . . 44
SECTION 10.12. Record Date for Action by Securityholders 45
SECTION 10.13. Governing Law . . . . . . . . . . . . . . 45
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<PAGE>
INDENTURE, dated as of April 18, 1996, between DRESSER INDUSTRIES, INC.,
a corporation incorporated and existing under the laws of the State of
Delaware ("Company"), and TEXAS COMMERCE BANK NATIONAL ASSOCIATION, a
national banking association ("Trustee").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the holders of the Company's unsecured
debentures, notes and other evidences of indebtedness from time to time
authenticated and delivered pursuant to this Indenture, which may be issued
in one or more series, each such series ranking PARI PASSU with each other
series:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"Affiliate" means any person directly or indirectly controlling or
controlled by, or under direct or indirect common control with, the Company.
"Agent" means any Registrar or Paying Agent.
"Attributable Debt" means, in respect of a Sale and Leaseback
Transaction, the present value (discounted at the weighted average effective
interest rate per annum of the outstanding Securities of all series,
compounded semiannually) of the obligation of the lessee for rental payments
during the remaining term of the lease entered into in connection with such
transaction, including any period for which such lease has been extended or
may, at the option of the lessor, be extended or, if earlier, until the
earliest date on which the lessee may terminate such lease upon payment of a
penalty (in which case for purposes of this definition the obligation of the
lessee for rental payments shall include such penalty), after excluding all
amounts required to be paid on account of maintenance and repairs, insurance,
taxes, assessments, water and utility rates and similar charges.
Notwithstanding the foregoing, there shall not be deemed to be any
"Attributable Debt" in respect of a Sale and Leaseback Transaction if the
Company is authorized to enter into such transaction pursuant to clause (b)
of Section 4.04.
"Board of Directors" or "Board" means the Board of Directors of the
Company or any authorized committee of the Board of Directors.
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<PAGE>
"Board Resolution" means a copy of a resolution delivered to the Trustee
and certified by the Secretary or an Assistant Secretary of the Company to
have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification.
"Company" means the party named as such above until a successor replaces
it pursuant to the applicable provisions of this Indenture, and thereafter
shall mean the successor.
"Company Order" means a written order of the Company, signed by two
Officers, one of whom shall be the principal executive, financial or
accounting officer of the Company, and delivered to the Trustee.
"Consolidated Net Tangible Assets" means the total amount of assets
which would be included on a consolidated balance sheet of the Company and
its subsidiaries (whether such subsidiaries are corporations or partnerships
or other entities not organized as corporations) under generally accepted
accounting principles (less applicable reserves and other properly deductible
items) after deducting therefrom:
(a) all short-term liabilities and liability items, except for (i)
liabilities and liability items payable by their terms more than one year
from the date of determination (or renewable or extendible at the option
of the obligor for a period ending more than one year after such date) and
(ii) liabilities in respect of retiree benefits other than pensions and
post-employment benefits for which the Company is required to accrue
pursuant to Statement of Financial Accounting Standards No. 106 and No.
112, respectively; and
(b) all goodwill, trade names, trademarks, patents, unamortized debt
discount, unamortized expense incurred in the issuance of debt and other
intangible assets.
"Consolidated Net Tangible Assets" includes the assets of
majority-owned partnerships that do not constitute "Restricted Subsidiaries".
"Default" means any event which is, or after notice or the passage of
time, or both, would be, an Event of Default.
"Depositary" means a clearing agency registered under the Securities
Exchange Act of 1934, as amended, or any successor thereto, which shall be
designated by the Company pursuant to Section 2.01 until a successor
Depositary shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Depositary" shall mean or include
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<PAGE>
each person who is then a Depositary hereunder, and if at any time there is
more than one such person, shall mean or include all such persons.
"Depositary" as used with respect to the Securities of any series shall mean
the Depositary with respect to the Securities of that series.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Funded Debt" means all indebtedness or obligations which by its terms
is payable more than 12 months after the date of determination (or which is
renewable or extendible at the option of the obligor on such indebtedness to
a date more than 12 months after the date of determination) which should
under generally accepted accounting principles be shown as a liability on the
consolidated financial statements of the Company and its consolidated
subsidiaries.
"Generally accepted accounting principles" when used with respect to any
computation or interpretation required or permitted hereunder means such
accounting principles which are generally accepted as of the date of this
Indenture.
"Global Security" means a Security registered in the name of the
Depositary or its nominee evidencing all or part of a series of Securities,
which is executed by the Company and authenticated and delivered to the
Depositary or pursuant to the Depositary's instructions, all in accordance
with this Indenture and pursuant to a Company Order.
"Holder" or "Securityholder" means a person in whose name a Security is
registered in the Security Register.
"Indenture" means this Indenture as amended from time to time pursuant
to the applicable provisions of this Indenture, and shall include the form
and terms of each particular series of Securities established pursuant to
Section 2.01 hereof.
"Interest Payment Date" means the date on which payment of an
installment of interest on the Securities of any series is due.
"Material Subsidiary" means any consolidated subsidiary of the Company
(whether a corporation or a partnership or other entity not organized as a
corporation) if such consolidated subsidiary would be deemed a "significant
subsidiary" under the rules and regulations promulgated by the SEC under the
Securities Act.
"Maturity" when used with respect to any Security means the date on
which the principal of such Security or an installment of principal becomes
due and payable as therein
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<PAGE>
provided, whether at the Stated Maturity or by declaration of acceleration,
call for redemption, pursuant to a sinking fund or otherwise.
"Officer" means the Chairman of the Board, Vice Chairman of the Board,
President, any Vice President, the Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers, one
of whom shall be the principal executive, financial or accounting officer.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. Such counsel may be an employee of or
counsel to the Company.
"Original Issue Discount Security" means any Security which provides for
an amount less than the stated principal amount thereof to be due and payable
upon declaration of acceleration of the Stated Maturity thereof pursuant to
Section 6.02.
"Principal" of a Security means the principal of the Security, plus the
premium, if any, on the Security.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 2.01.
"Restricted Subsidiary" means any Subsidiary existing as of the date
hereof or any corporation that is the successor to such a Subsidiary.
"Sale and Leaseback Transaction" means any sale or transfer made by the
Company or one or more Restricted Subsidiaries (except a sale or transfer
made to the Company or one or more Restricted Subsidiaries) of any property
which (in the case of a property which is a manufacturing plant, warehouse,
or office building) has been in operation, use, or commercial production
(exclusive of test and start-up periods) by the Company or any Restricted
Subsidiary for more than 120 days prior to such sale or transfer or which (in
the case of a property which is a parcel of real property other than a
manufacturing plant, warehouse or office building) has been owned by
the Company or any Restricted Subsidiary for more than 120 days prior to such
sale or transfer, if such sale or transfer is made with the intention of
leasing, or as part of an arrangement involving the lease, of such property
to the Company or a Restricted Subsidiary, except (a) a lease for a period
not exceeding 60 months (exclusive of any renewal options granted thereunder
to the Company or any Restricted Subsidiary), made with the intention that
the use of the leased property by the Company or such Restricted Subsidiary
will be discontinued on or before the
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<PAGE>
expiration of such period and (b) a lease that secures or relates to
obligations issued by the United States of America or any state, territory or
possession of the United States of America, or any political subdivision of
any of the foregoing, or of the District of Columbia, in connection with the
financing of the cost of construction or acquisition of such property or a
part thereof.
"SEC" means the Securities and Exchange Commission.
"Secured Debt" means (i) any indebtedness for money borrowed by, or
evidenced by a note or other similar instrument of, the Company or a
Restricted Subsidiary, (ii) any other indebtedness of the Company or
Restricted Subsidiary on which by the terms of such indebtedness interest is
paid or payable, including obligations evidenced or secured by leases,
installment sales agreements or other instruments, or (iii) any indebtedness
or obligations of others of a type referred to in clause (i) or (ii) above
that are guaranteed, directly or indirectly, by the Company or any Restricted
Subsidiary, which in any such case is secured by (a) a Security Interest in
any property of the Company or any Restricted Subsidiary or portion thereof
or (b) a Security Interest in any shares of stock owned directly or
indirectly by the Company or a Restricted Subsidiary in a corporation or in
equity interests owned by the Company or a Restricted Subsidiary in a
partnership or other entity not organized as a corporation or in the rights
of the Company or any Restricted Subsidiary in respect of indebtedness for
money borrowed by a corporation, partnership or other entity in which the
Company or a Restricted Subsidiary has an equity interest. The securing in
the foregoing manner of any indebtedness which immediately prior thereto was
not Secured Debt shall be deemed to be the creation of Secured Debt at the
time such security is given. The amount of Secured Debt at any time
outstanding shall be the maximum aggregate amount then owing thereon by the
Company and its Restricted Subsidiaries.
"Securities" means the unsecured debentures, notes and other evidences
of indebtedness (including any Global Securities) authenticated and delivered
under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Interest" means any mortgage, pledge, lien, encumbrance or
other security interest which secures payment or performance of an obligation.
"Stated Maturity" when used with respect to any Security or any
installment of principal thereof means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
principal is due and payable.
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<PAGE>
"Subsidiary" means any corporation of which at least a majority of the
outstanding capital stock having ordinary voting power to elect a majority of
the board of directors of such corporation is owned by the Company or by the
Company and one or more Subsidiaries or by one or more Subsidiaries.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the date first above written, except to the
extent that any subsequent amendment thereto shall retroactively apply to
this Indenture.
"Trustee" means the party named as such above or any other trustee
appointed with respect to the Securities of any series as contemplated by
Section 2.01, in each case until a successor replaces it with respect to the
Securities of one or more series pursuant to the applicable provisions of
this Indenture, and thereafter with respect to the Securities of such one or
more series shall mean the successor.
"Trust Officer" means the Chairman of the Board, the President or any
other officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"U.S. Government Obligations" means direct obligations of the United
States of America for the payment of which the full faith and credit of the
United States of America is pledged and which are not callable at the
issuer's option.
SECTION 1.02. OTHER DEFINITIONS.
<TABLE>
<CAPTION>
DEFINED IN
TERM SECTION
---- ----------
<S> <C>
"Bankruptcy Law" . . . . . . . . . . . . . . . . . . . 6.01
"Custodian" . . . . . . . . . . . . . . . . . . . . . . 6.01
"Event of Default" . . . . . . . . . . . . . . . . . . 6.01
"Legal Holiday" . . . . . . . . . . . . . . . . . . . . 10.07
"Paying Agent" . . . . . . . . . . . . . . . . . . . . 2.03
"Registrar" . . . . . . . . . . . . . . . . . . . . . . 2.03
"Security Register" . . . . . . . . . . . . . . . . . 2.03
</TABLE>
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
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<PAGE>
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company.
All other terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by SEC rule under the TIA have
the meanings assigned to them by such statute or rule, except as provided in
Section 7.10.
SECTION 1.04. RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular; and
(5) provisions apply to successive events and transactions.
ARTICLE 2
THE SECURITIES
SECTION 2.01. FORM AND DATING. The Securities of each series shall be
in such form as shall be established by or pursuant to a Board Resolution or
in one or more indentures supplemental hereto, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and in case such form is not established by
supplemental indenture, such form shall be approved by the Trustee if the
Trustee's rights or obligations are adversely affected thereby, and such form
may further have such legends, notations or endorsements as may be required
by law, stock exchange rules or usage.
Each Security shall be in fully-registered form and shall be dated the
date of its authentication.
The Securities may be issued in one or more series. There shall be
established by or pursuant to a Board Resolution, and set forth in an
Officers' Certificate delivered to the
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<PAGE>
Trustee, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series, the following terms with respect
to such series, and thereafter such terms shall be deemed to be a part of
this Indenture (it being understood and agreed that, in the case of any terms
to be established by or pursuant to a Board Resolution which, if established,
would adversely affect the rights and obligations of the Trustee, such terms
shall not be deemed to be a part of the Indenture unless and until they shall
have been approved by the Trustee):
(1) the title of the Securities of such series (which shall distinguish
the Securities of such series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
such series which may be authenticated and delivered under this Indenture
(except for Securities of such series authenticated and delivered upon
transfer of, or in exchange for, or in lieu of, other Securities of such
series pursuant to Section 2.06, 2.07, 2.10, 3.06 or 9.05);
(3) the date or dates on which the Principal of the Securities of such
series is payable or the manner of determining such date or dates;
(4) the rate or rates at which the Securities of such series shall bear
interest, if any, or the method or methods of calculating such rate or
rates of interest and the date or dates from which such interest shall
accrue;
(5) the Interest Payment Dates on which such interest shall be payable
and the Regular Record Dates for the interest payable on any Interest
Payment Date;
(6) the place or places where the Principal of and interest on the
Securities of such series shall be payable;
(7) the period or periods within which, the price or prices at which,
and the terms and conditions upon which Securities of such series may be
redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of such series pursuant to any sinking fund or analogous
provisions or at the option of the Holder thereof and the period or periods
within which, the price or prices at which, and the terms and conditions
upon which Securities shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
-8-
<PAGE>
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities shall be issuable;
(10) if Securities of such series constitute Original Issue Discount
Securities, the portion of the principal amount of Securities which shall
be payable upon declaration of acceleration thereof pursuant to Section
6.02;
(11) any Events of Default with respect to the Securities of such series
in addition to those set forth in Section 6.01;
(12) whether the Securities of such series shall be issued, in whole or
in part, in the form of one or more Global Securities and, in such case,
the Depositary for such Global Security or Securities;
(13) the identity of any trustee, authenticating agent, Paying Agent or
Registrar with respect to the Securities of such series, if other than the
Trustee; and
(14) any other terms with respect to the Securities of such series
(which terms shall not be inconsistent with the provisions of this
Indenture).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided by or pursuant to
the Board Resolution and set forth in the Officers' Certificate delivered to
the Trustee or as provided pursuant to an indenture supplemental hereto with
respect to such series. All Securities of any one series need not be issued
at the same time, and unless otherwise provided, a series may be reopened for
issuance of additional Securities of such series.
SECTION 2.02. EXECUTION AND AUTHENTICATION. An Officer shall sign the
Securities for the Company by manual or facsimile signature and the Company's
seal shall be reproduced on the Securities and attested by the manual or
facsimile signature of an authorized Officer of the Company.
If an Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security shall be valid
nevertheless.
A Security shall not be valid until authenticated by the Trustee by
manual signature. The Trustee's certificate of authentication of all
Securities shall be in substantially the following form:
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This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
_________________________, as Trustee
By:_________________________
Authorized Signatory
The manual signature of the Trustee on a certificate of authentication
in the form hereinabove provided for shall be conclusive evidence that the
Security has been authenticated under this Indenture.
The Trustee shall at any time and from time to time authenticate
Securities for original issue, upon delivery to the Trustee of (i) the
Securities executed by the Company and (ii) a Company Order requesting the
authentication thereof.
In authenticating Securities of a particular series, and accepting the
additional responsibilities under this Indenture in relation to such series
of Securities, the Trustee shall be entitled to receive and (subject to
Section 7.01) shall be fully protected in relying upon:
(1) certified copies of the Certificate of Incorporation and bylaws of
the Company;
(2) each Board Resolution relating to the Securities of such series,
and if the form or forms of the Securities of such series and the terms
with respect thereto are established by a Board Resolution, an Officers'
Certificate (i) approving the form or forms of the Securities of such
series and the terms with respect thereto, to the extent such terms have
been established (and, if the Securities of such series are Original Issue
Discount Securities, setting forth such facts as are necessary to compute
amounts due upon acceleration, if such facts are not specified in the form
of Security) and (ii) stating that all conditions precedent to the issuance
and authentication of the Securities of such series have been complied
with;
(3) an executed supplemental indenture (if any) relating to such
Securities;
(4) an Opinion of Counsel, which shall state
(a) that the terms with respect to the Securities of such series
have been established by or pursuant to a Board Resolution or by a
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supplemental indenture as permitted by, and in conformity with, the
provisions of this Indenture;
(b) that the Securities of such series, when authenticated and
delivered by the Trustee and issued by the Company in the manner and
subject to any further conditions specified in such Opinion of Counsel
that are reasonably acceptable to the Trustee, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except insofar as (i) such enforcement may
be subject to bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors'
rights generally and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought; and
(c) that all conditions precedent to the execution and delivery by
the Company of the Securities have been complied with; and
(5) such other documents as the Trustee may reasonably require.
If all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate or the
Opinion of Counsel otherwise required pursuant to Section 2.01 and this
Section 2.02 at or prior to the time of authentication of each Security of
such series if such documents have been delivered at or prior to the
authentication upon original issuance of the first Security of such series.
Each security shall be dated the date of its authentication.
The Trustee shall not be required to authenticate any Securities if such
action may not lawfully be taken or will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture in a manner
which is not reasonably acceptable to the Trustee.
The aggregate principal amount of Securities of any series outstanding
at any time may not exceed any limit upon the maximum principal amount for
such series set forth in or pursuant to the Board Resolution or supplemental
indenture relating to such series delivered pursuant to this Section 2.02,
except as authorized pursuant to Section 2.07.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the
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Trustee may do so, provided that only the Trustee may authenticate Securities
pursuant to Section 2.07. Each reference in this Indenture to authentication
by the Trustee includes authentication by an authenticating agent. An
authenticating agent has the same rights as an Agent to deal with the Company
or an Affiliate.
SECTION 2.03. REGISTRAR AND PAYING AGENT. The Company shall maintain an
office or agency where Securities may be presented to the registrar
("Registrar") for registration of transfer or for exchange and an office or
agency where Securities may be presented to the paying agent ("Paying Agent")
for payment; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the person entitled
thereto as such address shall appear in the register of the Securities
provided for in this Section. The Registrar shall keep a register of the
Securities (the "Security Register") and of their transfer and exchange. The
Company may appoint one or more co-registrars and one or more additional
paying agents with respect to any one or more series. The "Registrar" includes
any co-registrar and the term "Paying Agent" includes any additional paying
agent. The Company shall notify the Trustee of the name and address of any
Registrar or Paying Agent not a party to this Indenture. If the Company fails
to maintain a Registrar or Paying Agent for the Securities, the Trustee shall
act as such. The Company initially appoints the Trustee as Paying Agent and
Registrar.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST. The Company shall
require each Paying Agent other than the Trustee to agree in writing that the
Paying Agent will (i) hold in trust for the benefit of Securityholders of any
series or the Trustee all money held by the Paying Agent for the payment of
Principal of or interest on the Securities of such series, (ii) notify the
Trustee of any default by the Company in making any such payment and (iii)
pay to the Trustee all sums so held in trust by such Paying Agent, upon
written request of the Trustee at any time during the continuance of an Event
of Default. If the Company acts as Paying Agent, it shall segregate the
money and hold it as a separate trust fund. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon
doing so, the Paying Agent (if other than the Company) shall have no further
liability for the money.
SECTION 2.05. SECURITYHOLDER LISTS. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to
it of the names and addresses of Holders of Securities of each series. If
the Trustee is not the Registrar and Paying Agent with respect to Securities
of any series, the Company shall furnish to the Trustee on or before each
Interest Payment Date for such Securities (and on dates to be determined in
the manner provided in Section 2.01 for any series of Original Issue Discount
Securities which by their terms bear interest only after Maturity), but in no
case less frequently than semiannually, and at such other times as the
Trustee may request in writing,
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a list in such form and as of such date as the Trustee may reasonably require
of the names and addresses of Holders of the Securities of such series.
SECTION 2.06. TRANSFER AND EXCHANGE. Subject to the provisions of
Section 2.10, where Securities are presented to the Registrar with a request
to register transfer or to exchange them for an equal principal amount of
Securities of the same series of other denominations, the Registrar shall
register the transfer or make the exchange if its requirements for such
transactions are met. The Registrar shall not be required to register the
transfer or exchange of (i) Securities of any series during a 15-day period
beginning at the opening of business 15 days before the day of mailing of a
redemption notice pursuant to Section 3.03 with respect to Securities of such
series or (ii) any Security selected for redemption in whole or in part,
except the unredeemed portion of a Security redeemed in part. To permit
registration of transfer and exchanges, the Company shall issue and the
Trustee shall authenticate Securities at the Registrar's request. No service
charge shall be made to any Securityholder for any transfer, exchange or
replacement of Securities, except that the Company may require payment of a
sum sufficient to cover any tax or other governmental charge which may be
imposed in relation to any such transfer, exchange or replacement, other than
exchanges pursuant to Section 2.10, 3.06 or 9.05. Notwithstanding the
foregoing, Securities of a series may be exchanged only for Securities of the
same series having identical terms.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat
the person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of Principal of and any
interest on such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the
contrary.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Registrar duly executed, by the Holder
thereof or his attorney duly authorized in writing.
SECTION 2.07. REPLACEMENT SECURITIES. If the Holder of a Security
claims that the Security has been lost, mutilated, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a
replacement Security of the same series having identical terms if the
Trustee's requirements are met. If required by the Trustee or the Company,
such Holder shall provide an indemnity bond sufficient in the judgment of the
Trustee to protect the Company, the Trustee, any Agent or any authenticating
agent from any loss which any of them may suffer if a Security is replaced.
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Every replacement Security is an additional obligation of the Company
and shall be entitled to all benefits of the Indenture equally and
proportionately with all other Securities duly issued hereunder.
SECTION 2.08. OUTSTANDING SECURITIES. The Securities outstanding at
any time are all the Securities authenticated by the Trustee, except for
those cancelled by it, those delivered to it for cancellation, and those
described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If Securities are considered paid under Section 4.01, they cease to be
outstanding and interest on them ceases to accrue.
A Security does not cease to be outstanding because the Company or an
Affiliate holds the Security.
SECTION 2.09. REQUIRED PRINCIPAL AMOUNT. In determining whether the
Holders of the required principal amount of Securities have concurred in any
direction, waiver or consent, (i) Securities owned by the Company or an
Affiliate shall be disregarded, except that for the purpose of determining
whether the Trustee shall be protected in relying on any such direction,
waiver or consent, only Securities which the Trustee has been advised in
writing by the Company or the Holder are so owned shall be so disregarded and
(ii) the principal amount of an Original Issue Discount Security that shall
be deemed to be outstanding for such purposes shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Stated Maturity
thereof determined in accordance with Section 6.02.
SECTION 2.10. TEMPORARY SECURITIES; GLOBAL SECURITIES. (a) Until
definitive Securities are ready for delivery, the Company may prepare and
execute and, upon receipt of a Company Order, the Trustee shall authenticate
temporary Securities. Temporary Securities of any series shall be
substantially in the form of definitive Securities of such series but may
have variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and, upon
surrender of such temporary Securities, the Company shall execute and the
Trustee shall authenticate definitive Securities of such series in exchange
for such temporary Securities. Until so exchanged, the temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
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(b) If the Company shall establish pursuant to Section 2.01 that the
Securities of a series are to be issued in whole or in part in the form of
one or more Global Securities, then the Company shall execute and the Trustee
shall, in accordance with Section 2.02 and pursuant to a Company Order,
authenticate and deliver one or more Global Securities in temporary or
permanent form that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of the outstanding Securities of such
series to be represented by one or more Global Securities, (ii) shall be
registered in the name of the Depositary for such Global Security or
Securities or the nominee of such Depositary, (iii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's instruction and
(iv) shall bear any customary legend reasonably required by the Depositary
and shall further bear a legend substantially to the following effect: "This
Security is a Global Security within the meaning of the Indenture hereinafter
referred to and is registered in the name of a Depositary or a nominee
thereof. This Security may not be transferred to, or registered or exchanged
for Securities registered in the name of, any person other than the
Depositary or a nominee thereof and no such transfer may be registered,
except in the limited circumstances described in the Indenture. Every
Security authenticated and delivered upon registration of transfer of, or in
exchange for or in lieu of, this Security shall be a Global Security subject
to the foregoing, except in such limited circumstances."
Notwithstanding any other provision of this Section 2.10 or Section
2.06, unless and until it is exchanged in whole or in part for Securities in
definitive form, a Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or
by such Depositary or any such nominee to a successor Depositary for such
series or a nominee of such successor Depositary.
None of the Company, the Trustee, any Paying Agent or the Registrar has
any direct obligation or responsibility to participants of the Depositary or
beneficial owners of interests in Securities. Without limiting the
generality of the foregoing, none of the Company, the Trustee, any Paying
Agent or the Registrar will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests in a Global Security (including the maintenance, review
and supervision of any such records), for the delivery of any notice to any
owner of a beneficial interest, for the selection of the beneficial owners to
receive payment in the event of any partial redemption of Securities, or for
any consent given or other action taken by the Depositary as owner of the
Securities.
If at any time the Depositary for the Securities of a series notifies
the Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for Securities of
a series shall no longer be registered or in good
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standing under the Exchange Act or other applicable statute or regulation,
the Company shall appoint a successor Depositary with respect to the
Securities of such series. If a successor Depositary for the Securities of
such series is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, the Company will
execute, and the Trustee, upon receipt of a Company Order instructing the
Trustee to authenticate and deliver definitive Securities of such series,
will authenticate and deliver Securities of such series in definitive form in
an aggregate principal amount equal to the principal amount of the Global
Security or Securities representing such series in exchange for such Global
Security or Securities.
The Company may at any time and in its sole discretion determine that
the Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or
Securities. Furthermore, if there shall have occurred and be continuing an
Event of Default or an event which, with the giving of notice or lapse of
time, or both, would constitute an Event of Default with respect to any
series of Securities, the Trustee may determine that the Securities of such
series shall no longer be represented by a Global Security or Securities. In
any such event, the Company will execute, and the Trustee, upon receipt of a
Company Order instructing the Trustee to authenticate and deliver definitive
Securities of such series, will authenticate and deliver Securities of such
series in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such
series in exchange for such Global Security or Securities.
If specified by the Company pursuant to Section 2.01 with respect to
Securities of a series, the Depositary for such series of Securities may
surrender a Global Security for such series of Securities in exchange, in
whole or in part, for Securities of such series in definitive form on such
terms as are acceptable to the Company and such Depositary. Thereupon, the
Company shall execute and, upon receipt of a Company Order, the Trustee shall
authenticate and deliver, without charge:
(i) to each person specified by the Depositary, a new Security or
Securities of the same series of any authorized denomination as
requested by such person in an aggregate principal amount equal to and
in exchange for such person's beneficial interest in the Global
Security; and
(ii) to the Depositary, a new Global Security in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of
Securities delivered to Holders thereof.
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Upon the exchange of a Global Security for Securities in definitive
form, such Global Security shall be cancelled by the Trustee. Securities
issued in exchange for a Global Security pursuant to this Section shall be
registered in such names and in such authorized denominations as the
Depositary for such Global Security, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Securities to the persons in whose names such
Securities are so registered.
SECTION 2.11. CANCELLATION. The Company at any time may deliver
Securities of any series to the Trustee for cancellation. The Registrar and
Paying Agent shall forward to the Trustee any Securities surrendered to them
for registration of transfer, exchange or payment. The Trustee shall cancel
all Securities surrendered for registration of transfer, exchange, payment or
cancellation and shall destroy or otherwise dispose of, or retain in
accordance with its standard retention policy, at its discretion, canceled
Securities and, where applicable, deliver a certificate of such destruction
or retention to the Company. The Company may not issue new Securities of any
series to replace Securities of such series that it has paid or delivered to
the Trustee for cancellation.
SECTION 2.12. DEFAULTED INTEREST. If the Company defaults in a payment
of interest on any of the Securities, it shall pay the defaulted interest
plus, to the extent permitted by law, any interest payable on the defaulted
interest, to the persons who are Holders of such Securities on a subsequent
special record date. The Company shall fix the record date and payment date
after making arrangements satisfactory to the Trustee for the deposit of such
amounts with the Trustee for payment and after consultation with the Trustee
regarding the selection of such dates. At least 15 days before the record
date, the Company shall mail to the Holders of such Securities a notice that
states the record date, payment date, and amount of interest to be paid.
ARTICLE 3
REDEMPTION; SINKING FUND
SECTION 3.01. NOTICES TO TRUSTEE. The Company may elect to redeem
Securities of any series in accordance with the provisions of such
Securities; provided, however, that if an Event of Default shall have
occurred and be continuing, the Securities of any series may not be redeemed
in whole or in part, unless (i) the Securities of all series are redeemed in
whole or (ii) the Securities of all series are redeemed in part and the
principal amount to be redeemed is prorated among all Holders so that all
Holders of each series receive in redemption of their outstanding Securities
the same principal amount per $1,000 of Securities (provided, however, that
if the Securities of any such series are Original Issue
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Discount Securities, for purposes of this clause (ii), such pro ration shall
be based upon each $1,000 that would be due and payable on the redemption
date in the event of a declaration of acceleration of the Stated Maturity
thereof pursuant to Section 6.02). The election of the Company to redeem
Securities of any series in accordance with the provisions of such Securities
shall be evidenced by or pursuant to a Board Resolution. In case of any
redemption at the election of the Company, the Company shall, at least 45
days before the redemption date (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such redemption date and
in the case of any redemption of less than all of the Securities of any
series (or, where redemption provisions of any series of Securities are not
identical as to each Security within the series, in case of any redemption at
the election of the Company of less than all the Securities with identical
redemption provisions) the principal amount of the Securities of such series
to be redeemed and shall deliver to the Trustee such documentation and
records as shall enable the Trustee to select the Securities to be redeemed
pursuant to Section 3.02.
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED. If less than all
of the Securities of a series (or, where the redemption provisions of any
series of Securities are not identical as to each Security within the series,
if less than all the Securities with identical redemption provisions) are to
be redeemed, the Trustee shall, subject to Section 3.01, select the
Securities to be redeemed by such method as the Trustee shall deem fair and
appropriate. The Trustee shall make the selection not more than 45 days
before the redemption date from outstanding Securities of such series (or, if
the redemption provisions of all of the Securities of such series are not
identical, from Securities of such series with identical redemption
provisions) not previously called for redemption. The Trustee may select for
redemption portions of the principal of Securities of any series that have
denominations larger than the minimum principal denomination for such series.
Provisions of this Indenture that apply to Securities called for redemption
also apply to portions of Securities called for redemption.
SECTION 3.03. NOTICE OF REDEMPTION. At least 30 days but not more than
60 days before a redemption date, the Trustee shall, in the name of the
Company and at the Company's expense, mail by first-class mail a notice of
redemption to each Holder at the address shown in the Security Register whose
Securities are to be redeemed.
The notice shall identify the Securities to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
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(4) if less than all the outstanding Securities of a series
(or, in the case of series of Securities in which the redemption
provisions are not identical as to each Security within the series, less
than all of the Securities of a series with identical redemption
provisions) are to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular Securities
to be redeemed;
(5) that Securities called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(6) that interest on Securities called for redemption ceases to
accrue on and after the redemption date; and
(7) that the redemption is pursuant to the terms of a sinking
fund, if such is the case.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION. Once notice of a
redemption is mailed, Securities called for redemption become due and
payable on the redemption date at the redemption price. Upon surrender
to the Paying Agent, such Securities shall be paid and redeemed at the
redemption price, together with interest accrued thereon to the
redemption date; provided, however, that installments of interest
becoming due on or prior to the redemption date shall be payable to the
Holders of such Securities, or one or more previous Securities
evidencing all or a portion of the same debt as that evidenced by such
particular Securities, registered as such at the close of business on
the relevant record date according to their terms and the provisions of
Section 2.12.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE. On or before the
redemption date, the Company shall deposit with the Paying Agent money
in immediately available funds sufficient to pay the aggregate
redemption price of and accrued interest on all Securities to be
redeemed on that date.
SECTION 3.06. SECURITIES REDEEMED IN PART. Upon surrender of a
Security that is redeemed in part, the Company shall execute and the
Trustee shall authenticate for the Holder a new Security of the same
series, having terms identical to those of the Securities surrendered,
equal in principal amount to the unredeemed portion of the Security
surrendered.
SECTION 3.07. SINKING FUND. Each sinking fund payment provided
for by the terms of Securities of any series shall be applied to the
redemption of such Securities as provided for by the terms of such
Securities and this Section 3.07.
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In satisfaction of any minimum or optional sinking fund payment
required or permitted to be made pursuant to the terms of Securities of
any particular series (or, where the sinking fund provisions of each
Security within such series are not identical, then pursuant to the
terms of the Securities with identical sinking fund provisions), the
Company may (i) deliver to the Trustee Securities of that series (or,
where the sinking fund provisions of the Securities of such series are
not identical, Securities of that series having identical sinking fund
provisions) which have not previously been called for redemption and
which the Company has not previously delivered to the Trustee for
cancellation or (ii) notify the Trustee of its election to credit
against the required sinking fund payment the principal amount of any
Securities of that series (or, if applicable, any Securities of that
series with identical sinking fund provisions) which have been redeemed
otherwise than pursuant to minimum sinking fund payment requirements
with respect to the Securities of such series (or, if applicable, with
respect to the Securities of such series with identical sinking fund
provisions); provided, however, that such Securities have not been
previously so credited. Such Securities shall be received and credited
for such purpose by the Trustee at the redemption price specified in
such Securities for redemption through operation of the sinking fund and
the amount of such minimum or optional sinking fund payment shall be
reduced accordingly.
Not less than 45 days prior to each sinking fund payment date
(unless a shorter notice shall be satisfactory to the Trustee) for any
particular series of Securities (or, where the sinking fund provisions
of the Securities within such series are not identical, for the
Securities of such series having identical sinking fund provisions), the
Company will give an Officer's Certificate to the Trustee specifying the
amount of the next succeeding sinking fund payment (including any
optional sinking fund payment which is permitted to be made by the terms
of the Securities) for that series pursuant to the terms of that series
(or, if applicable, for such Securities pursuant to the terms of such
Securities), 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 crediting Securities against the required sinking fund
payment pursuant to the preceding paragraph of this Section and will
also deliver to the Trustee any Securities to be so credited. The
Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 3.02 and cause
notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 3.03. Such
notice having been duly given, the redemption of such Securities shall
be made upon the terms and in the manner stated in Sections 3.04 and
3.06.
SECTION 3.08. TERMS OF SECURITIES TO GOVERN. Notwithstanding any
other provision of this Article 3, if any provision of any Security of
any series shall conflict with any provision of this Article, the
provision of such Security shall govern.
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ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES. The Company shall pay the
Principal of and any interest on the Securities on the dates and in the
manner provided in the Securities. Principal and interest shall be considered
paid on the date due if the Paying Agent holds on that date money deposited
with it by or on behalf of the Company sufficient to pay all Principal and
interest then due.
The Company shall pay interest on overdue principal at the rate borne by
such Securities or otherwise as provided in the Securities; it shall pay
interest on overdue installments of interest at the same rate to the extent
permitted by law.
Each payment by the Company to the Trustee or the Paying Agent shall be
accompanied by a written notice from the Company that specifies the series to
which such payment relates.
SECTION 4.02. SEC REPORTS. The Company shall furnish to the Trustee,
within 15 days after it files them with the SEC, 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 SEC may by rules and regulations
prescribe) that the Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act. The Company also shall comply with
the other provisions of TIA SECTION 314(a).
SECTION 4.03. RESTRICTION ON CREATION OF SECURED DEBT. After the date
hereof, the Company will not at any time create, incur, assume or guarantee,
and will not cause or permit a Restricted Subsidiary to create, incur, assume
or guarantee, any Secured Debt (including the creation of Secured Debt by the
securing of existing indebtedness) without first making effective provision
(and the Company covenants that in such case it will first make or cause to
be made effective provision) whereby the Securities of all series then
outstanding (together with any other indebtedness of the Company or such
Restricted Subsidiary then entitled to be so secured) shall be secured
equally and ratably with (or prior to) any and all other obligations and
indebtedness thereby secured, for so long as any such other obligations and
indebtedness shall be so secured; provided, however, that the foregoing
covenants shall not be applicable to Secured Debt secured solely by one or
more of the following Security Interests:
(a) Any Security Interest upon any property which consists solely of
one or more parcels of real property, manufacturing plants, warehouses or
office buildings and of fixtures and equipment located on or at such
parcels, plants,
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warehouses or buildings and which is acquired, constructed, developed or
improved by the Company or a Restricted Subsidiary after the date hereof,
which Security Interest is created prior to or contemporaneously with,
or within 120 days after, (i) in the case of the acquisition of such
property, the completion of such acquisition and (ii) in the case of the
construction, development or improvement of such property, the later to
occur of the completion of such construction, development or improvement
or the commencement of operation, use or commercial production (exclusive
of test and start-up periods) of the property, which Security Interest
secures or provides for the payment of all or any part of the acquisition
cost of such property or the cost of construction, development or
improvement thereof, as the case may be;
(b) Any Security Interest on property existing at the time of the
acquisition thereof by the Company or a Restricted Subsidiary, which
Security Interest secures obligations assumed by the Company or a
Restricted Subsidiary;
(c) Any Security Interest existing on the property of a corporation
or firm at the time such corporation or firm is merged into or consolidated
with the Company or a Restricted Subsidiary;
(d) Any conditional sales agreement or other title retention
agreement with respect to any property acquired by the Company or a
Restricted Subsidiary;
(e) Any Security Interest to secure indebtedness of a Restricted
Subsidiary to the Company or to another Restricted Subsidiary; or
(f) Any extension, renewal or refunding (or successive extensions,
renewals or refundings) in whole or in part of any Secured Debt secured by
any Security Interest referred to in the foregoing subparagraphs (a)
through (e), inclusive; provided, however, that the principal amount of
the Secured Debt secured thereby shall not exceed the principal amount
outstanding immediately prior to such extension, renewal or refunding and
that the Security Interest securing such Secured Debt shall be limited to
the property which, immediately prior to such extension, renewal, or
refunding, secured such Secured Debt and additions to such property.
Notwithstanding subparagraphs (b) and (c) above, the creation,
incurrence, assumption or guarantee of any Secured Debt described therein
shall not be permitted (i) if such Secured Debt was created, incurred,
assumed or guaranteed in contemplation of the event or transaction referred
to in said subparagraphs or (ii) if the Security Interest securing such
Secured Debt attaches to or affects property owned by the Company or a
Restricted Subsidiary prior to the event or transaction referred to in said
subparagraphs.
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Notwithstanding anything to the contrary in this Section 4.03, the
Company and any one or more Restricted Subsidiaries may create, incur, assume
or guarantee Secured Debt if immediately thereafter the sum of (i) the
aggregate principal amount of all Secured Debt outstanding as of the date of
determination (excluding Secured Debt permitted to be created, incurred,
assumed or guaranteed pursuant to subparagraphs (a) through (f), inclusive,
above) and (ii) all Attributable Debt in respect of Sale and Leaseback
Transactions as of the date of determination would not exceed 10% of
Consolidated Net Tangible Assets.
SECTION 4.04. RESTRICTION ON SALE AND LEASEBACK TRANSACTIONS. After the
date hereof, the Company will not, and will not permit any Restricted
Subsidiary to, enter into any Sale and Leaseback Transaction, unless (a) the
Company or such Restricted Subsidiary would be entitled to incur Secured Debt
pursuant to Section 4.03 (other than by reason of the provisions of
subparagraphs (a) through (f), inclusive, of said Section) in an amount equal
to the Attributable Debt in respect of such Sale and Leaseback Transaction
without equally and ratably securing the Securities as provided in said
Section or (b) each of the following conditions is satisfied: (i) the Company
shall promptly give notice of such sale or transfer to the Trustee; (ii) the
net proceeds of such sale or transfer are at least equal to the fair value
(as determined in good faith by a Board Resolution, a copy of which has been
delivered by the Company to the Trustee) of the property which is the subject
of such sale or transfer; and (iii) the Company or a Restricted Subsidiary
shall apply, within one year after the effective date of such sale or
transfer, or shall have committed within one year after such effective date
to apply, an amount at least equal to the net proceeds of the sale or
transfer of the property which is the subject of such sale or transfer to the
optional redemption of Securities in accordance with the provisions of
Article 3 at the redemption price applicable at the time of such redemption,
or to the repayment of other Funded Debt owing by the Company or any
Restricted Subsidiary which is not subordinate and junior in right of payment
to the Securities, or in part to such redemption and in part to such
repayment; provided, however, that if pursuant to clause (b) above the
Company commits to apply an amount at least equal to the net proceeds of a
sale or transfer to the redemption of the Securities or to the repayment of
other Funded Debt, such commitment shall be made in a written instrument
delivered by the Company to the Trustee and shall require the Company to so
apply said amount within 18 months after the effective date of such sale or
transfer, and it shall constitute a breach of the provisions of this Section
4.04 if the Company shall fail so to apply said amount in satisfaction of
such commitment; and, provided, further, that in lieu of applying an amount
equal to all or part of such net proceeds to such redemption or repayment,
the Company may, within one year after such sale or transfer, deliver to the
Trustee Securities (other than Securities made the basis of a reduction in
any mandatory sinking fund payment under the terms of the Securities of any
series) for cancellation and thereby reduce the amount to be applied to the
redemption of Securities pursuant to clause (b) above by an amount equal to
the aggregate principal amount of Securities so delivered. Securities
redeemed or delivered to the Trustee for cancellation
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pursuant to this Section 4.04 shall not be used as credits against mandatory
sinking fund payments.
SECTION 4.05. CERTIFICATE TO TRUSTEE. The Company covenants and agrees
to furnish to the Trustee, not less often than annually, an Officer's
Certificate certifying as to the Company's compliance with all conditions and
covenants under this Indenture; provided, for purposes of this paragraph,
such compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
SECTION 4.06. MAINTENANCE OF OFFICE OR AGENCY. The Company will
maintain in the Borough of Manhattan, The City of New York, an office or
agency of the Trustee, Registrar and Paying Agent where Securities may be
presented or surrendered for payment, where Securities may be surrendered for
registration of transfer, exchange, purchase or redemption, and where notices
and demands to or upon the Company in respect of the Securities and this
Indenture may be served. Unless otherwise provided pursuant to Section 2.01,
the office or agency of the Trustee in the Borough of Manhattan, New York,
New York, shall initially be such office or agency for all of the aforesaid
purposes. The Company shall give prompt written notice to the Trustee of the
location, and of any change in the location, of any such office or agency
(other than a change in the location of the office of the Trustee). If at
any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 10.11.
SECTION 4.07. FURTHER ASSURANCES. From time to time whenever
reasonably requested by the Trustee, the Company will make, execute and
deliver, or cause to be made, executed or delivered, any and all such further
and other instruments and assurances as may be reasonably necessary or proper
to carry out the intention of or to facilitate the performance of the terms
of this Indenture or to secure the rights and remedies of the Holders of
Securities of any series provided for in this Indenture, including, but not
limited to, furnishing all necessary information to the Trustee in connection
with calculations and tax reporting relating to any Original Issue Discount
Securities that may be issued by the Company hereunder.
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ARTICLE 5
SUCCESSORS
SECTION 5.01. WHEN COMPANY MAY MERGE, ETC. The Company shall not
consolidate or merge into, or sell, assign, transfer or lease all or
substantially all of its assets to, any person unless:
(1) the person is a corporation organized and existing under the
laws of the United States of America or any State thereof or the District
of Columbia;
(2) the person assumes by supplemental indenture all the obligations
of the Company under the Securities and this Indenture;
(3) immediately after the transaction no Default shall exist; and
(4) an Officers' Certificate and Opinion of Counsel have been
delivered to the Trustee to the effect that the conditions set forth in
the preceding clauses (1) through (3) above have been met.
The corporation formed by or resulting from any such consolidation or
merger, or which shall have received all or substantially all of such assets,
shall succeed to and be substituted for the Company with the same effect as
if it had been named herein as a party hereto, and thereafter, except in the
case of a lease of all or substantially all of such assets, the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. An "Event of Default" with respect to
Securities of any series occurs if:
(1) the Company defaults in the payment of interest on any Security
of such series when the same becomes due and payable, which Default
continues for a period of 30 days;
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(2) the Company defaults in the payment of the Principal of any
Security of such series when the same becomes due and payable at Maturity,
upon redemption or otherwise;
(3) the Company fails to comply with any of its other agreements
with respect to Securities of such series or this Indenture (other than a
covenant included in this Indenture solely for the benefit of any series
of Securities other than such series or a covenant which has not been
breached with respect to such series), which Default continues for a
period of 90 days after notice of such Default is given to the Company by
the Trustee or the Holders of at least 25% in principal amount of the
Securities of such series;
(4) there occurs a default under any bond, indenture, note or other
evidence of indebtedness for money borrowed by the Company or any
Restricted Subsidiary (including a default with respect to Securities of
any series other than such 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 for money borrowed by the Company or
any Restricted Subsidiary (including this Indenture) with a principal
amount then outstanding in excess of $25,000,000, whether such indebtedness
exists now or shall hereafter be created, which default shall constitute a
failure to pay any portion of the principal of such indebtedness when due
and payable after the expiration of any applicable grace period with
respect thereto or results in such indebtedness becoming or being declared
due and payable prior to the date on which it would otherwise have become
due and payable, without such indebtedness having been discharged, or such
acceleration having been rescinded or annulled;
(5) the Company or any Material Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:
(a) commences a voluntary case;
(b) consents to the entry of an order for relief against it in
an involuntary case;
(c) consents to the appointment of a Custodian for it or for all
or substantially all of its property; or
(d) makes a general assignment for the benefit of its creditors;
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(6) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(a) is for relief against the Company or any Material Subsidiary
in an involuntary case;
(b) appoints a Custodian of the Company or any Material
Subsidiary or for all or substantially all of the property of the
Company or such Material Subsidiary, or
(c) orders the liquidation of the Company or any Material
Subsidiary, and the order or decree remains unstayed and in effect
for 90 days; or
(7) there occurs any other Event of Default with respect to the
Securities of such series specified in the terms of such series.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
SECTION 6.02. ACCELERATION. If an Event of Default with respect to the
Securities of any series occurs and is continuing, the Trustee by notice to
the Company, or the Holders of at least 25% in principal amount of the
Securities of that series by notice to the Company and the Trustee, may
declare the principal (or, if the Securities of that series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of that series) of and accrued interest on all the
Securities of that series to be due and payable immediately. Upon such
declaration, the principal (or specified amount) of and accrued interest on
all the Securities of that series shall be due and payable immediately. The
Holders of a majority in principal amount of the Securities of that series by
notice to the Trustee and the Company may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default with respect to the Securities of that
series have been cured or waived except nonpayment of principal or interest
that has become due solely because of the acceleration.
SECTION 6.03. OTHER REMEDIES. If an Event of Default with respect to
the Securities of any series occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal of or interest on
the Securities of that series or to enforce the performance of any provision
of the Securities of that series or this Indenture.
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The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or
remedy upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS. The Holders of a majority in
outstanding principal amount of the Securities of any series by notice to the
Trustee may waive an existing Default with respect to that series and its
consequences, except a Default in the payment of the principal of or interest
on any Security of that series.
SECTION 6.05. CONTROL BY MAJORITY. The Holders of a majority in
aggregate outstanding principal amount of the Securities of all series
affected (voting as one class) may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it with respect to the Securities
of such series. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture, is unduly prejudicial to the rights of
another Securityholder of such series or any other series, or would involve
the Trustee in personal liability.
SECTION 6.06. LIMITATION ON SUITS. A Holder of Securities of any
series may pursue a remedy with respect to this Indenture or the Securities
only if:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default with respect to Securities of that series;
(2) the Holders of a majority in principal amount of the Securities
of that series make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(5) during such period, the Holders of a majority in aggregate
outstanding principal amount of the Securities of that series do not give
the Trustee a direction inconsistent with the request;
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provided, however, that it is understood and intended, and is expressly
covenanted by each Holder of every Security of a series with every other
Holder and the Trustee, that no Holders of such series of Securities shall
have any right in any manner whatsoever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of the
Holders of any other series of Securities, or to obtain or seek to obtain
priority over or preference to any other such Holder, or to enforce any right
under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all Holders of Securities.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding
any other provision of this Indenture, the right of any Holder of a Security
to receive payment of Principal of and interest on the Security, on or after
the respective due dates expressed in the Security, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not
be impaired or affected without the consent of the Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE. If an Event of Default
specified in Section 6.01(1) or (2) with respect to Securities occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee
of an express trust against the Company for the whole amount of principal
(or, if the Securities of that series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of that
series) and interest remaining unpaid with respect to the Securities as to
which an Event of Default has occurred.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Securityholders
allowed in any judicial proceedings relative to the Company, its creditors or
its property.
SECTION 6.10. PRIORITIES. If the Trustee collects any money pursuant
to this Article, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Holders of Securities in respect of which or for
the benefit of which such money has been collected, for amounts due and
unpaid on such Securities for Principal (or, if such Securities are
Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) and interest,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal and interest,
respectively; and
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THIRD: to the Company.
The Trustee may fix a record date and payment date for any payment to such
Securityholders.
SECTION 6.11. UNDERTAKING FOR COSTS. 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 or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any
party litigant in the suit, having due regard to the merits and good faith of
the claims or defenses made by the party litigant. This Section does not
apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07,
or a suit by Holders of more than 10% in principal amount of the Securities
of any series.
ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture
and use the same degree of care and skill in their exercise as a prudent man
would exercise or use under the circumstances in the conduct of his own
affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are specifically
set forth in this Indenture and no others; 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. However, the Trustee shall examine the certificates
and opinions required by the terms of this Indenture to determine
whether or not they conform to the requirements of this Indenture but
need not confirm the correctness of all mathematical computations or
other facts or matters stated therein.
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(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(1) this paragraph does not limit the effect of paragraph (b) of this
Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 or any other
direction permitted by this Indenture.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right or
power, and no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur financial liability, unless it
receives indemnity satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree with the Company. Money held in trust
by the Trustee need not be segregated from other funds except to the extent
required by law.
SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee need
not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel, or both. The Trustee shall
not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
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(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers.
(e) The Trustee may consult with counsel, and the advice or opinion of
counsel with respect to legal matters relating to this Indenture and the
Securities shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder
in good faith and in accordance with the advice or opinion of such counsel.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction.
(g) For all purposes under this Indenture, the Trustee shall not be
deemed to have notice or knowledge of any Event of Default (other than under
Section 6.01(1) and (2)) unless a Trust Officer knows of such Event of
Default or unless written notice of any Event of Default (other than under
Section 6.01(1) or (2)) is received by the Trustee at its address specified
in Section 10.11 hereof and such notice references the Securities generally,
the Company or this Indenture.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee in its
individual or any other capacity may become the owner or pledgee of
Securities of any series and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights. However, the Trustee is subject to
Sections 7.10 and 7.11.
SECTION 7.04. TRUSTEE'S DISCLAIMER. The Trustee makes no
representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company's use of the proceeds
from the Securities, and it shall not be responsible for any statement in the
Securities other than its authentication.
SECTION 7.05. NOTICE OF DEFAULTS. If a Default in respect of the
Securities of any series occurs and is continuing and if it is known to the
Trustee, the Trustee shall mail to the Holders of the Securities of that
series a notice of the Default within 90 days after it occurs. Except in the
case of a Default in payment of the principal or interest on any Security, or
in the payment of any sinking fund or purchase fund installment, the Trustee
may withhold the notice if and so long as a committee of its Trust Officers
in good faith determines that withholding the notice is in the interests of
the Holders of the Securities of that series.
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SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS. If required by TIA
Section 313(a), within 60 days after the reporting date stated in this Section
7.06, the Trustee shall mail to Securityholders of each series a brief report
dated as of such reporting date that complies with TIA Section 313(a). The
Trustee shall also comply with TIA Section 313(b). For purposes of this
Section 7.06, the reporting date shall be May 15 of each year. The first
reporting date will be the first May 15 following the issuance of the first
series of Securities hereunder.
A copy of each report at the time of its mailing to Securityholders of
each series shall be filed with the SEC and each stock exchange on which the
Securities of each series are listed. The Company will notify the Trustee of
the listing of Securities of any series on a stock exchange.
SECTION 7.07. COMPENSATION AND INDEMNITY. The Company shall pay to the
Trustee from time to time reasonable compensation including compensation for
extraordinary services related to default administration for its services.
The Trustee's compensation shall not be limited by any law on compensation of
a trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable expenses incurred by it. Such expenses shall
include the reasonable compensation and expenses of the Trustee's agents and
counsel.
The Company shall indemnify the Trustee against any loss or liability
incurred by it arising out of or in connection with the acceptance or
administration of this Indenture, including the costs and expenses of
defending itself against any claims or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The
Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. The Company shall defend the claim and the Trustee shall cooperate
in the defense. The Trustee may have separate counsel and the Company shall
pay the reasonable fees and expenses of such counsel. The Company need not
pay for any settlement made without its consent.
The Company need not reimburse any expense or indemnify against any loss
or liability incurred by the Trustee if the acts or omissions of the Trustee,
if any, relating to such loss or liability, breached any standard of care
applicable to or imposed on the Trustee for such acts or omissions.
To secure the Company's payment obligations in this Section, the Trustee
shall have a lien prior to the Securities on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Securities.
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When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(5) or (6) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.08. REPLACEMENT OF TRUSTEE. A resignation or removal of the
Trustee and appointment of a successor Trustee shall become effective only
upon the successor Trustee's acceptance of appointment as provided in this
Section.
The Trustee may resign at any time with respect to the Securities of one
or more series by so notifying the Company. The Holders of a majority in
principal amount of the then-outstanding Securities of any series may remove
the Trustee with respect to such series by so notifying the Trustee and the
Company. The Company may remove the Trustee with respect to the Securities
of one or more series if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, with respect to the Securities of any one
or more series, the Company shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to
the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable requirements of
Section 7.10. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the then-outstanding Securities
of each series may appoint a successor Trustee with respect to the Securities
of their respective series to replace the successor Trustee for the
Securities of such series appointed by the Company.
If a successor Trustee with respect to the Securities of any series does
not take office within 60 days after the retiring Trustee with respect to the
Securities of that series resigns or is removed, the retiring Trustee, the
Company or the Holders of at least 10% in principal amount of the
then-outstanding Securities of that series may petition any court of
competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of that series.
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If the Trustee fails to comply with Section 7.10, with respect to the
Securities of one or more series, any Holder of Securities of such series may
petition any court of competent jurisdiction for the removal of the Trustee
with respect to the Securities of that series and the appointment of a
successor Trustee with respect to the Securities of that series.
In the case of the appointment of a successor Trustee with respect to
all Securities, the successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of
its succession to all Securityholders. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, subject
to the lien provided for in Section 7.07. Notwithstanding the replacement of
the Trustee pursuant to this Section 7.08, the Company's obligations under
Section 7.07 hereof shall continue for the benefit of the retiring Trustee
with respect to expenses and liabilities incurred by it prior to such
replacement.
In case of the appointment of a successor Trustee with respect to the
Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or
more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (i)
shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (ii) if the retiring Trustee is not retiring with respect to
all series of Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee, with respect to the Securities of that or
those series as to which the retiring Trustee is not retiring, shall continue
to be vested in the retiring Trustee and (iii) 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 the successor Trustee shall have
all the rights, powers and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates. The successor Trustee shall mail a notice of its succession
to the Holders of all Securities of that or those series to which the
appointment of such successor Trustee relates. The retiring Trustee shall
promptly transfer all property held by it with respect to the Securities of
that or those series to which the
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appointment of such successor Trustee relates, subject to the lien provided
for in Section 7.07. Notwithstanding the replacement of the Trustee pursuant
to this Section 7.08, the Company's obligations under Section 7.07 hereof
shall continue for the benefit of the retiring Trustee with respect to
expenses and liabilities incurred by it prior to such replacement. No
successor Trustee with respect to Securities of any series shall accept
appointment as provided in this Section 7.08 unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under the
provisions of Section 7.10.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC. If the Trustee
consolidates, merges or converts into, or transfers all or substantially all
of its corporate trust business to, another corporation, the successor
corporation without any further act shall be the successor Trustee.
SECTION 7.10. ELIGIBILITY, DISQUALIFICATION. This Indenture shall
always have a Trustee with respect to the Securities of each series
which satisfies the requirements of TIA Section 310(a)(1) and (5). The
Trustee shall always have a combined capital and surplus of at least
$25,000,000 as set forth in its most recent published annual report of
condition or shall be a wholly-owned subsidiary of a bank, a trust
company or a bank holding company having, together with its
subsidiaries, a reported combined capital and surplus of at least
$25,000,000. The Trustee is subject to TIA Section 310(b); PROVIDED,
HOWEVER, that there shall be excluded from the operation of TIA
Section 310(b)(1) any indenture or indentures under which
other securities or certificates of interest or participation in other
securities of the Company are outstanding if the requirements for such
exclusion set forth in TIA Section 310(b)(1) are met.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY. The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the
extent indicated.
ARTICLE 8
DISCHARGE OF INDENTURE AND SECURITIES
SECTION 8.01. SATISFACTION AND DISCHARGE OF INDENTURE. If at any
time (a) the Company shall have paid or caused to be paid the Principal of
and interest on all the Securities of any series outstanding hereunder, as
and when the same shall have become due and payable, or (b) the Company shall
have delivered to the Trustee for cancellation all Securities of any series
theretofore authenticated (other than any Securities of such series which
shall have been destroyed, lost or stolen and which shall have been replaced
as provided in Section 2.07 or paid), and if, in any such case, the Company
shall also pay or
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<PAGE>
cause to be paid all other sums payable hereunder by the Company with respect
to Securities of such series, then this Indenture shall cease to be of
further effect with respect to Securities of such series (except as to (i)
rights of registration of transfer and exchange, and the Company's right of
optional redemption, if any, (ii) substitution of apparently mutilated,
defaced, destroyed, lost or stolen Securities, (iii) rights of the Holders to
receive payments of Principal thereof and interest thereon from the trust
fund established pursuant to Section 8.02, and remaining rights of the
Holders to receive mandatory sinking fund payments, if any, from the trust
fund established pursuant to Section 8.02, (iv) the rights, obligations and
immunities of the Trustee hereunder, (v) the rights of the Securityholders of
such series as beneficiaries hereof with respect to the property so deposited
with the Trustee payable to all or any of them, (vi) all other obligations of
the Company in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 7.07, 7.08 and 8.06 and
(vii) the Company's rights pursuant to Sections 7.08, 8.05 and 8.06), and the
Trustee, on demand of the Company accompanied by an Officers' Certificate and
an Opinion of Counsel and at the cost and expense of the Company, shall
execute proper instruments acknowledging such satisfaction of and discharging
this Indenture with respect to Securities of such series. The Company agrees
to reimburse the Trustee for any costs or expenses thereafter reasonably and
properly incurred and to compensate the Trustee for any services thereafter
reasonably and properly rendered by the Trustee in connection with this
Indenture or the Securities of such series.
SECTION 8.02. DEFEASANCE. For purposes of Section 8.01, the
Company shall be deemed to have paid the Principal of and interest on
Securities of any series outstanding hereunder as and when the same
shall have become due and payable, if the Company shall have irrevocably
deposited or caused to be deposited in trust with the Trustee funds in
cash and/or U.S. Government Obligations sufficient without reinvestment
thereof, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof
delivered to the Trustee, to provide for timely payment of Principal of
and interest on the Securities of such series to Stated Maturity or
redemption, as the case may be, not theretofore delivered to the Trustee
for cancellation; provided, however, that (i) in order to have money
available on a payment date to pay Principal or interest on the
Securities of such series, the U.S. Government Obligations shall be
payable as to principal and interest on or before such payment date in
such amounts as will provide the necessary money; and (ii) the Company
shall obtain an Opinion of Counsel (which may be based on a ruling from,
or published by, the Internal Revenue Service) to the effect that
Holders of the Securities of that series will not recognize income, gain
or loss for federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to federal income tax on
the same amounts and in the same manner and at the same times, as would
have been the case if such deposit, defeasance and discharge had not
occurred; and provided, further, however, that notwithstanding the
foregoing, with respect to any series of Securities which shall at the
time be listed for trading on The New York Stock Exchange, there shall
be no deposit of funds in cash and/or in U.S. Government Obligations
with the
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<PAGE>
Trustee to pay the Principal amount, the redemption price or
any installment of interest in order to discharge the Company's
obligation in respect of any such payment if at such time the rules of
The New York Stock Exchange prohibit such deposit with the Trustee.
SECTION 8.03. SATISFACTION AND DISCHARGE OF SECURITIES. Securities of
a series shall be deemed to have been paid in full as between the Company and
the respective Holders (and future Holders) of Securities of such series upon
the satisfaction and discharge of the Indenture with respect to Securities of
such series pursuant to Section 8.01, except that in the case of such
satisfaction and discharge as a result of compliance with Section 8.02, the
Securities of such series shall be deemed to have been paid in full as
between the Company and the respective Holders (and future Holders) of
Securities of such series only if the deposit in trust with the Trustee by
the Company of the funds in cash and/or U.S. Government Obligations as
provided in Section 8.02 is not subsequently deemed a preference under the
United States Bankruptcy Code as then in effect.
SECTION 8.04. APPLICATION BY TRUSTEE OF MONEY OR U.S. GOVERNMENT
OBLIGATIONS. Subject to Section 8.06, all money or U.S. Government
Obligations deposited with the Trustee pursuant to Section 8.02 shall be
held in trust and applied by it to the payment, either directly or
through the Paying Agent to the Holders of the particular Securities of
such series for the payment or redemption of which such money or U.S.
Government Obligations shall have been deposited with the Trustee, of
all sums due and to become due thereon for principal and interest but
money so held in trust need not be segregated from other funds except to
the extent required by law.
SECTION 8.05. REPAYMENT OF MONEY OR U.S. GOVERNMENT OBLIGATIONS BY
PAYING AGENT. In connection with the satisfaction and discharge of this
Indenture with respect to Securities of any series, all money or U.S.
Government Obligations then held by the Paying Agent under the
provisions of this Indenture with respect to such series of Securities
shall, upon demand of the Company, be paid or delivered to the Trustee
and thereupon the Paying Agent shall be released from all further
liability with respect to such money or U.S. Government Obligations.
SECTION 8.06. RETURN OF MONEY, SECURITIES OR U.S. GOVERNMENT
OBLIGATIONS. The Trustee and the Paying Agent shall promptly pay to the
Company upon request any money, U.S. Government Obligations or
Securities that, 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 required
under Section 8.02. Any money or U.S. Government Obligations deposited
with or paid to the Trustee or the Paying Agent for the payment of the
Principal of, or interest on any Security of any series and not applied
but remaining unclaimed for two years after the date upon which such
Principal or interest shall become due and payable, shall, upon the
request of the Company
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<PAGE>
and unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property laws, be repaid or delivered
to the Company by the Trustee for such series or by the Paying Agent,
and the Holder of the Security of such series shall, unless otherwise
required by mandatory provisions of applicable escheat or abandoned or
unclaimed property laws, thereafter look only to the Company for any
payment which such Holder may be entitled to collect, and all liability
of the Trustee or the Paying Agent with respect to such money or U.S.
Government Obligations shall thereupon cease.
SECTION 8.07. REINSTATEMENT. If the Trustee is unable to apply
any money or U.S. Government Obligations in accordance with Section 8.02
by reason of any legal proceeding or by reason of any order or judgment
of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under
this Indenture and the Securities shall be revived and reinstated as
though no deposit had occurred pursuant to Section 8.02 until such time
as the Trustee is permitted to apply all such money or U.S. Government
Obligations in accordance with Section 8.02.
ARTICLE 9
AMENDMENTS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS. The Company and the
Trustee may amend this Indenture or the Securities without the consent
of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency or to make such
provisions with respect to matters or questions arising under this
Indenture as may be necessary or desirable and not inconsistent with
this Indenture or with any indenture supplemental hereto or any Board
Resolution establishing any series of Securities, provided that such
amendment does not adversely affect the rights of Securityholders;
(2) to comply with Section 5.01;
(3) to add additional covenants;
(4) to establish the form or forms or terms with respect to
Securities of any additional series as permitted by Section 2.01;
(5) to evidence and provide for the acceptance of appointment of a
successor Trustee with respect to the Securities of one or more series
and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for
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<PAGE>
or facilitate the administration of the trusts hereunder by more than
one Trustee, pursuant to the requirements of Section 7.08; or
(6) to provide for the issuance of Securities of any series with
interest coupons; and
(7) to provide for the exchange of Global Securities for
Securities issued hereunder in definitive form and to make all
appropriate changes for such purpose.
SECTION 9.02. WITH CONSENT OF HOLDERS. The Company and the
Trustee may amend this Indenture in a manner affecting the Securities of
any series, or may amend the Securities of such series, with the written
consent of the Holders of at least 66-2/3% in principal amount of the
then-outstanding Securities of such series. However, without the
consent of each Securityholder affected, an amendment under this Section
may not:
(1) reduce the percentage in principal amount of Securities whose
Holders must consent to an amendment;
(2) reduce the rate of or change the time for payment of interest
on any Security;
(3) reduce the Principal of (or, in the case of Original Issue
Discount Securities, the amount of such Securities that would be due and
payable upon acceleration of the Maturity thereof pursuant to Section
6.02), change the Stated Maturity of or reduce the amount payable on
redemption of or otherwise alter the requirements with respect to the
mandatory redemption of any Security;
(4) make any Security payable in money other than that stated in
the Security; or
(5) make any change in Section 6.04 or 6.07 or this Section 9.02.
After an amendment under this Section becomes effective, the Company
shall mail to Securityholders a notice briefly describing the amendment.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT. Every amendment to
this Indenture or the Securities shall be set forth in a supplemental
indenture that complies with the TIA as then in effect.
SECTION 9.04. EFFECT OF CONSENTS. A consent to an amendment or waiver
by a Holder of a Security is effective upon delivery to the Trustee and is a
continuing consent by
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<PAGE>
the Holder and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder's
Security, even if notation of the consent is not made on any Security;
however, any such Holder or subsequent Holder may revoke the consent as
to his Security or portion of a Security if the Trustee receives the
notice of revocation before the date the amendment or waiver becomes
effective. An amendment or waiver becomes effective in accordance with
its terms and thereafter binds every Securityholder, except to the
extent each Securityholder affected must consent and such Securityholder
did not do so.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES. The Trustee
may place an appropriate notation about an amendment or waiver on any
Security thereafter authenticated. The Company in exchange for all
Securities may issue and the Trustee shall authenticate new Securities
that reflect the amendment or waiver.
SECTION 9.06. TRUSTEE PROTECTED. The Trustee need not sign any
supplemental indenture that adversely affects its rights. In signing such
amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 7.01) shall be
fully protected in relying upon, an Officers' Certificate and an Opinion of
Counsel stating that such amendment is authorized or permitted by this
Indenture and complies with the provisions hereof (including Section 9.03).
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. TRUST INDENTURE ACT CONTROLS. If any provision of this
Indenture limits, qualifies, or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 10.02. NOTICES. Any notice or communication by the Company or
the Trustee to the other shall be in writing and shall be delivered in person
or mailed by first-class mail or overnight air courier guaranteeing next-day
delivery to the other's address stated in Section 10.11; provided, however,
that any such notice shall be deemed duly given when such notice is received
by the Company or the Trustee, as the case may be. The Company or the Trustee
by notice to the other may designate additional or different addresses for
subsequent notices or communications.
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<PAGE>
Any notice or communication to a Securityholder shall be mailed by
first-class mail or overnight air courier guaranteeing next-day delivery to
his address shown on the Security Register. Failure to mail a notice or
communication to a Securityholder or any defect in a notice shall not affect
the sufficiency thereof with respect to any other Securityholders.
Except as provided above, if a notice or communication is mailed in the
manner and within the time prescribed above, it shall be deemed duly given,
whether or not the addressee receives it.
If the Company mails a notice or communication to Securityholders, it
shall mail a copy to the Trustee and each Agent at the same time.
SECTION 10.03. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b) with
other Securityholders with respect to their rights under this Indenture
or the Securities. The Company, the Trustee, the Registrar and anyone
else affected shall be entitled to the protection of TIA Section 312(c).
SECTION 10.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 10.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that each person making such certificate or
opinion has read such covenant or condition;
(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 person, he has
made such examination or investigation as is necessary to enable him to
express an
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<PAGE>
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 person,
such condition or covenant has been complied with.
Any Officers' Certificate may be based, insofar as it relates to
legal matters, upon an Opinion of Counsel, unless such Officer knows
that the opinion with respect to the matters upon which his certificate
may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous. Any Opinion of
Counsel may be based, insofar as it relates to factual matters the
information with respect to which is in the possession of the Company,
upon the certificate, statement or opinion of or representations by an
officer or officers of the Company, unless such counsel knows that the
certificate, statement or opinion or representation with respect to the
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should
know that the same are erroneous.
Any Officers' Certificate, statement or Opinion of Counsel may be based,
insofar as it relates to accounting matters, upon a certificate or opinion of
or representations by an accountant (who may be an employee of the Company),
or firm of accountants, unless such Officer or counsel, as the case may be,
knows that the certificate or opinion or representations with respect to the
accounting matters upon which the certificate, statement or opinion may be
based as aforesaid are erroneous, or in the exercise of reasonable care
should know that the same are erroneous. Any certificate or opinion of any
independent firm of public accountants filed with the Trustee shall contain a
statement that such firm is independent.
SECTION 10.06. RULES BY TRUSTEE AND AGENTS. The Trustee may make
reasonable rules for action by written consent or at a meeting of Holders of
Securities of any series. The fact and date of the execution of a written
consent or other writing by any such person shall be established in
accordance with the procedures specified in such reasonable rules, and the
ownership of Securities of any series shall be established by the Security
Register for such series maintained by the Registrar. The Registrar or
Paying Agent may make reasonable rules and set reasonable requirements for
its functions.
SECTION 10.07. LEGAL HOLIDAYS. A "Legal Holiday" is a Saturday, a
Sunday or a day on which banking institutions in any place of payment are not
required to be open. If a payment date with respect to a particular series of
Securities is a Legal Holiday at a place of payment, payment may be made at
that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.
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<PAGE>
SECTION 10.08. NO RECOURSE AGAINST OTHERS. No person shall have any
recourse under or upon any obligation or agreement of the Company under this
Indenture or the Securities of any series or because of any debt evidenced by
the Securities of any series against any stockholder, officer, employee or
director, as such, of the Company. By accepting a Security of any series,
each Holder waives and releases all such liability as a part of the
consideration for the issuance thereof.
SECTION 10.09. INTEREST LIMITATION. If any usury law now or at
any time hereafter in force shall be applicable to this Indenture or the
Securities of any series or any other document or instrument related
hereto or thereto, it is the intention of the Company and the Trustee to
conform strictly to any such usury laws and any subsequent revisions or
repeals thereof. In furtherance thereof, the Company and the Trustee
stipulate and agree that none of the terms and provisions contained in
this Indenture or the Securities of any series or any other document or
instrument related hereto or thereto shall ever be construed to give
rise to a contract or obligation to pay interest in excess of the
maximum amount permitted to be contracted for, taken, reserved, charged,
collected or received under any applicable law.
SECTION 10.10. DUPLICATE ORIGINALS. The parties may sign any number of
copies of this Indenture. One signed copy is enough to prove this Indenture.
SECTION 10.11. ADDRESSES.
The Company's address is:
Dresser Industries, Inc.
2001 Ross Avenue
Dallas, TX 75201
Attention: Vice President - Corporate Counsel and Secretary
The Trustee's address is:
Texas Commerce Bank National Association
600 Travis Street
8th Floor
Houston, Texas 77002
Attention: Vice President, Corporate Trust Department
Telephone: (713) 216-4181
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<PAGE>
For purposes of the requirement of a New York office contained in
Section 4.06, the address of the Trustee's agent is:
Texas Commerce Trust Company of New York
55 Water Street, Room 234
Windows 20 and 21
New York, New York 10041
Securities may also be presented or surrendered for payment or for
registration of transfer, exchange, purchase or redemption at:
Texas Commerce Bank National Association
1201 Main Street, 18th Floor
Dallas, Texas 75202
SECTION 10.12. RECORD DATE FOR ACTION BY SECURITYHOLDERS. The
Company (or, if a deposit has been made pursuant to Section 8.02 or if
an Event of Default has occurred, the Trustee) may set a record date for
purposes of determining the identity of Holders entitled to vote or
consent to any action by vote or consent authorized or permitted under
this Indenture, which record date shall be no later than ten days nor
more than 30 days prior to the first solicitation of such vote or
consent or the date of the most recent list of Holders furnished to the
Trustee pursuant to Section 2.05 hereof prior to such solicitation. If
a record date is fixed, those persons who were Holders of Securities at
such record date (or their duly designated proxies), and only those
persons, shall be entitled to take such action by vote or consent or to
revoke any vote or consent previously given, whether or not such persons
continue to be Holders after such record date.
SECTION 10.13. GOVERNING LAW. This Indenture and the Securities of any
series shall be governed by and construed in accordance with the laws of the
State of Texas (except that, to the fullest extent permitted by law, no
effect shall be given to any conflict of law principles of the State of Texas
that would require the application of the laws of any other jurisdiction) and
the applicable federal laws of the United States.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused the Indenture to be
duly executed, and the Company has caused its seal to be hereunto affixed and
attested, all as of the day and year first above written.
(Seal) DRESSER INDUSTRIES, INC.
By /s/ B. D. ST. JOHN
--------------------------------
B. D. St. John
Vice Chairman
Attest:
/s/ REBECCA R. MORRIS
- ---------------------------------
Rebecca R. Morris
Secretary
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
By /s/ WAYNE MENTZ
--------------------------------
Wayne Mentz
Assistant Vice President
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<PAGE>
STATE OF TEXAS )
) ss:
COUNTY OF DALLAS )
On the 18th day of April in the year one thousand nine hundred and
ninety-six before me personally came B. D. St. John to me known who, being by
me duly sworn, did depose and say that he is Vice Chairman of DRESSER
INDUSTRIES, INC., one of the corporations described in and which executed the
above instrument; that he knows the corporate seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that
he signed his name thereto by like authority.
/s/ LORETTA E. JONES
--------------------------------
Notary Public
[NOTARIAL SEAL]
<PAGE>
STATE OF TEXAS )
) ss:
COUNTY OF HARRIS )
On the 18th day of April in the year one thousand nine hundred and
ninety-six before me personally came Wayne Mentz to me known who, being
by me duly sworn, did depose and say that he is an Assistant Vice President
of TEXAS COMMERCE BANK NATIONAL ASSOCIATION, a national banking association and
one of the entities described in and which executed the above instrument, and
that he signed his name thereto by authority of the Board of Directors of
said entity.
/s/ MAUREEN A. JERDING
________________________________
Notary Public
[NOTARIAL SEAL]
<PAGE>
[DRESSER INDUSTRIES, INC. LETTERHEAD]
April 18, 1996
Dresser Industries, Inc.
2001 Ross Avenue
Dallas, Texas 75201
Re: Registration Statement on Form S-3
Dresser Industries, Inc.
Gentlemen:
Reference is made to the Registration Statement on Form S-3, as amended or
supplemented (the "Registration Statement"), filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the "Act"),
with respect to the contemplated issuance by Dresser Industries, Inc. (the
"Company") from time to time of up to $400,000,000 of Debt Securities (the
"Debt Securities"). The Debt Securities are to be issued pursuant to an
Indenture dated as of April 18, 1996 (as amended or supplemented, the
"Indenture") between the Company and Texas Commerce Bank National Association
as Trustee. As Corporate Counsel of the Company, I have examined such
corporate records, certificates and other documents and questions of law as
I deem necessary or appropriate to this opinion.
Based on the foregoing, I am of the opinion that:
(a) The Company has been duly incorporated and is validly existing in good
standing under the laws of the State of Delaware; and
(b) The Indenture is, and the Debt Securities, when duly authorized,
authenticated and delivered in accordance with the terms of the
Indenture, will be, valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective
terms, except as enforceability may be limited by bankruptcy, insolvency,
fraudulent conveyance or transfer, reorganization, moratorium or other
laws relating to or affecting creditors' rights generally and by general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
I hereby consent to the filing of this opinion as Exhibit 5 to said
Registration Statement and to the use of my name under the caption "Legal
Matters" in the Prospectus contained therein.
Very truly yours,
/s/ Rebecca R. Morris
---------------------------------
Rebecca R. Morris
Vice President-Corporate Counsel
and Secretary
<PAGE>
EXHIBIT 12
DRESSER INDUSTRIES, INC. AND CONSOLIDATED SUBSIDIARIES
COMBINED WITH UNCONSOLIDATED SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(MILLIONS OF DOLLARS EXCEPT FOR RATIO)
<TABLE>
<CAPTION>
YEAR ENDED OCTOBER 31,
3 MONTHS -----------------------------------------------------
TO 1/31/96 1995 1994 1993 1992 1991
----------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
EARNINGS
Consolidated Pretax Income from Continuing Operations.... 72.9 342.2 619.4 276.7 187.4 265.4
Share of Pretax Income of less than 50% Owned Affiliates:
Ingersoll-Dresser Pump Company......................... (9.2) (13.2) (8.8) (17.1) (2.2)
Western Atlas International, Inc. ..................... (39.2) (35.2) (32.7)
Share of Net Earnings of Other 50% and Less Owned
Affiliates.............................................. (1.2) (2.9) (14.6) (19.8) (14.7) (12.8)
Share of Pretax Income of Other 50% Owned Affiliates..... 2.1 10.1 7.1 9.1 10.8 7.3
Dividends Received from less than 50% Owned Affiliates... 0.6 2.7 7.9 3.1 4.1 2.1
Fixed Charges (see below)................................ 16.7 64.1 61.7 56.5 76.7 74.5
--- --------- --------- --------- --------- ---------
TOTAL EARNINGS........................................... 81.9 403.0 672.7 269.3 226.9 303.8
--- --------- --------- --------- --------- ---------
FIXED CHARGES
Interest Expense......................................... 12.5 47.4 49.3 44.5 47.4 56.9
Debt Expense and Amortization............................ 0.1 0.3 0.3 0.3 0.1 0.1
Premium on Redemption of Debentures...................... 9.8
Interest Factor of Rental Expense........................ 4.1 16.4 12.1 11.7 15.9 14.5
Share of Fixed Charges of 50% Owned Affiliates
Interest Expense....................................... 0.8 0.8
Interest Factor of Rental Expense...................... 2.7 2.2
--- --------- --------- --------- --------- ---------
TOTAL FIXED CHARGES...................................... 16.7 64.1 61.7 56.5 76.7 74.5
--- --------- --------- --------- --------- ---------
RATIO OF EARNINGS TO FIXED CHARGES....................... 4.90 6.29 10.90 4.77 2.96 4.08
--- --------- --------- --------- --------- ---------
--- --------- --------- --------- --------- ---------
</TABLE>
Notes:
1. The Company owned 50% of Dresser-Rand Company in 1991 and most of 1992.
Effective October 1, 1992, the Company increased its ownership to 51%.
Dresser-Rand's pre-tax income is included in Consolidated Pre-Tax Income
from Continuing Operations on the basis of 50% in 1991 and 1992 and 100% in
1993 and thereafter.
2. The Company owned 49% of Ingersoll-Dresser Pump Company from its inception
as of October 1, 1992.
3. The Company owned approximately 30% of Western Atlas International, Inc. in
1991, 1992 and 1993. The Company sold its interest in Western Atlas
International, Inc. in 1994 and had a pretax gain of $275.7 million
Excluding the gain, the ratio is 6.43.
4. Share of fixed charges of 50% owned affiliates relates to Dresser-Rand in
1991 and 1992 and is not significant in all other periods.
5. The interest factor of rental expense is estimated at one-third of total
rental expense on long-term leases, which management believes to be a
reasonable approximation.
<PAGE>
EXHIBIT 23.2
[PRICE WATERHOUSE LOGO]
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report
dated November 30, 1995, appearing on page 31 of Dresser Industries, Inc.'s
Annual Report on Form 10-K for the year ended October 31, 1995. We also
consent to the reference to us under the heading "Experts" in such Prospectus.
/s/ Price Waterhouse LLP
- ----------------------------------
PRICE WATERHOUSE LLP
Dallas, Texas
April 18, 1996
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
officer of DRESSER INDUSTRIES, INC., a Delaware corporation (the "Company"),
hereby constitutes and appoints REBECCA R. MORRIS and ALICE A. HINDS and each
or either of them, his true and lawful attorney-in-fact and agent, with full
power of substitution and re-substitution, for him and in his name, place and
stead, in any and all capacities, to sign, execute and file with the
Securities and Exchange Commission any and all documents referred to below
relating to the registration of $400,000,000 of Debt Securities of Dresser
Industries, Inc., which may be offered or sold from time to time: a
Registration Statement on Form S-3 under the Securities Act of 1933, as
amended, and any amendments thereto with all exhibits, and any and all
documents required to be filed with respect thereto, granting unto said
attorneys-in-fact and agents, and each or either of them, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and each or either of them, or substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned Director and/or officer of the Company
has hereunto set his hand this 27th day of February, 1996.
/s/ SAMUEL B. CASEY, JR.
----------------------------------
Samuel B. Casey, Jr.
Director
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
officer of DRESSER INDUSTRIES, INC., a Delaware corporation (the "Company"),
hereby constitutes and appoints REBECCA R. MORRIS and ALICE A. HINDS and each
or either of them, his true and lawful attorney-in-fact and agent, with full
power of substitution and re-substitution, for him and in his name, place and
stead, in any and all capacities, to sign, execute and file with the
Securities and Exchange Commission any and all documents referred to below
relating to the registration of $400,000,000 of Debt Securities of Dresser
Industries, Inc., which may be offered or sold from time to time: a
Registration Statement on Form S-3 under the Securities Act of 1933, as
amended, and any amendments thereto with all exhibits, and any and all
documents required to be filed with respect thereto, granting unto said
attorneys-in-fact and agents, and each or either of them, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and each or either of them, or substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned Director and/or officer of the Company
has hereunto set his hand this 12th day of March, 1996.
/s/ RICHARD W. VIESER
----------------------------------
Richard W. Vieser
Director
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
officer of DRESSER INDUSTRIES, INC., a Delaware corporation (the "Company"),
hereby constitutes and appoints REBECCA R. MORRIS and ALICE A. HINDS and each
or either of them, her true and lawful attorney-in-fact and agent, with full
power of substitution and re-substitution, for her and in her name, place and
stead, in any and all capacities, to sign, execute and file with the
Securities and Exchange Commission any and all documents referred to below
relating to the registration of $400,000,000 of Debt Securities of Dresser
Industries, Inc., which may be offered or sold from time to time: a
Registration Statement on Form S-3 under the Securities Act of 1933, as
amended, and any amendments thereto with all exhibits, and any and all
documents required to be filed with respect thereto, granting unto said
attorneys-in-fact and agents, and each or either of them, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and each or either of them, or substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned Director and/or officer of the Company
has hereunto set her hand this 21 day of March, 1996.
/s/ SYLVIA A. EARLE
----------------------------------
Sylvia A. Earle
Director
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)______
_______________
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
74-0800980
(I.R.S. Employer
Identification No.)
712 MAIN STREET
HOUSTON, TEXAS 77002
(Address of principal executive offices) (Zip Code)
___________________
DRESSER INDUSTRIES, INC.
(Exact name of obligor as specified in its charter)
DELAWARE 75-0813641
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2001 ROSS AVENUE
DALLAS, TEXAS 75201
(Address of principal executive offices) (Zip Code)
DEBT SECURITIES
(Title of the indenture securities)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
Comptroller of the Currency, Washington, D.C.
Federal Deposit Insurance Corporation, Washington, D.C.
Board of Governors of The Federal Reserve System, Washington, D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee.
ITEM 3. VOTING SECURITIES OF THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF VOTING
SECURITIES OF THE TRUSTEE:
COL. A COL. B
TITLE OF CLASS AMOUNT OUTSTANDING
-------------- ------------------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES.
IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY
OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, FURNISH THE FOLLOWING INFORMATION:
(A) TITLE OF THE SECURITIES OUTSTANDING UNDER EACH SUCH OTHER
INDENTURE.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
(B) A BRIEF STATEMENT OF THE FACTS RELIED UPON AS A BASIS FOR
THE CLAIM THAT NO CONFLICTING INTEREST WITHIN THE MEANING OF SECTION
310(b)(1) OF THE ACT ARISES AS A RESULT OF THE TRUSTEESHIP UNDER ANY
SUCH OTHER INDENTURE, INCLUDING A STATEMENT AS TO HOW THE INDENTURE
SECURITIES WILL RANK AS COMPARED WITH THE SECURITIES ISSUED UNDER SUCH
OTHER INDENTURE.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE
OBLIGOR OR UNDERWRITERS.
IF THE TRUSTEE OR ANY OF THE DIRECTORS OR EXECUTIVE OFFICERS
OF THE TRUSTEE IS A DIRECTOR, OFFICER, PARTNER, EMPLOYEE, APPOINTEE OR
REPRESENTATIVE OF THE OBLIGOR OR OF ANY UNDERWRITER FOR THE OBLIGOR,
IDENTIFY EACH SUCH PERSON HAVING ANY SUCH CONNECTION AND STATE THE
NATURE OF EACH SUCH CONNECTION.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS OFFICIALS.
<PAGE>
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE
TRUSTEE OWNED BENEFICIALLY BY THE OBLIGOR AND EACH DIRECTOR, PARTNER AND
EXECUTIVE OFFICER OF THE OBLIGOR.
COL. A COL. B COL. C COL. D
PERCENTAGE OF
VOTING SECURITIES
REPRESENTED BY
AMOUNT OWNED AMOUNT GIVEN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
------------- -------------- ------------ -----------------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE
TRUSTEE OWNED BENEFICIALLY BY EACH UNDERWRITER FOR THE OBLIGOR AND EACH
DIRECTOR, PARTNER AND EXECUTIVE OFFICER OF EACH SUCH UNDERWRITER.
COL. A COL. B COL. C COL. D
PERCENTAGE OF
VOTING SECURITIES
REPRESENTED BY
AMOUNT OWNED AMOUNT GIVEN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
------------- -------------- ------------ ------------------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO SECURITIES OF THE OBLIGOR
OWNED BENEFICIALLY OR HELD AS COLLATERAL SECURITY FOR OBLIGATIONS IN DEFAULT
BY THE TRUSTEE.
COL. A COL. B COL. C COL. D
WHETHER THE AMOUNT OWNED
SECURITIES BENEFICIALLY OR HELD PERCENT OF CLASS
ARE VOTING AS COLLATERAL SECURITY REPRESENTED BY
OR NONVOTING FOR OBLIGATIONS AMOUNT GIVEN
TITLE OF CLASS SECURITIES IN DEFAULT IN COL. C
-------------- ------------ ---------------------- ---------------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF AN UNDERWRITER FOR THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH
UNDERWRITER ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR HELD PERCENT OF CLASS
AS COLLATERAL SECURITY REPRESENTED BY
NAME OF ISSUER AND AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE IN COL. C
- ------------------ ----------- ---------------------- ------------------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
<PAGE>
ITEM 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT VOTING SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF
THE TRUSTEE (1) OWNS 10 PERCENT OR MORE OF THE VOTING SECURITIES OF THE
OBLIGOR OR (2) IS AN AFFILIATE, OTHER THAN A SUBSIDIARY, OF THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF SUCH PERSON:
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR HELD PERCENT OF CLASS
AS COLLATERAL SECURITY REPRESENTED BY
NAME OF ISSUER AND AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE IN COL. C
------------------ ----------- ---------------------- ----------------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON
OWNING 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF
THE TRUSTEE, OWNS 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH
PERSON ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR HELD PERCENT OF CLASS
AS COLLATERAL SECURITY REPRESENTED BY
NAME OF ISSUER AND AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE IN COL. C
------------------ ----------- ---------------------- ------------------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
EXCEPT AS NOTED IN THE INSTRUCTIONS, IF THE OBLIGOR IS INDEBTED TO
THE TRUSTEE, FURNISH THE FOLLOWING INFORMATION:
COL. A COL. B COL. C
NATURE OF AMOUNT
INDEBTEDNESS OUTSTANDING DATE DUE
------------ ----------- --------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 13. DEFAULTS BY THE OBLIGOR.
(A) STATE WHETHER THERE IS OR HAS BEEN A DEFAULT WITH RESPECT TO THE
SECURITIES UNDER THIS INDENTURE. EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There is not, nor has there been, a default with respect to the
securities under this indenture.
(B) IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH
ANY OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY
OTHER SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, OR IS TRUSTEE FOR MORE THAN
ONE OUTSTANDING SERIES OF SECURITIES UNDER THE INDENTURE, STATE WHETHER THERE
HAS BEEN A DEFAULT UNDER ANY SUCH INDENTURE OR SERIES, IDENTIFY THE INDENTURE
OR SERIES AFFECTED, AND EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
<PAGE>
There has not been a default under any such indenture or series.
ITEM 14. AFFILIATIONS WITH THE UNDERWRITERS.
IF ANY UNDERWRITER IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 15. FOREIGN TRUSTEE.
IDENTIFY THE ORDER OR RULE PURSUANT TO WHICH THE FOREIGN TRUSTEE IS
AUTHORIZED TO ACT AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR TO BE
QUALIFIED UNDER THE ACT.
Not applicable.
<PAGE>
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS STATEMENT OF
ELIGIBILITY.
-1 -- A copy of the articles of association of the trustee as now in effect.
#2 -- A copy of the certificate of authority of the trustee to commence
business.
*3 -- A copy of the authorization of the trustee to exercise corporate trust
powers.
+4 -- A copy of the existing by-laws of the trustee.
5 -- Not applicable.
*6 -- The consent of the trustee required by Section 321(b) of the Act.
++7 -- A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or
examining authority.
8 -- Not applicable.
9 -- Not applicable.
_____________
- Incorporated by reference to exhibit bearing the same designation
and previously filed with the Securities and Exchange Commission as
exhibits to the Form S-3 File No. 33-56195.
# Incorporated by reference to exhibit bearing the same designation
and previously filed with the Securities and Exchange Commission as an
exhibit to the Form S-3 File No. 33-42814.
* Incorporated by reference to exhibit bearing the same designation
and previously filed with the Securities and Exchange Commission as
exhibits to the Form S-11 File No. 33-25132.
+ Incorporated by reference to exhibit bearing the same designation
and previously filed with the Securities and Exchange Commission as
exhibits to the Form S-3 File No. 33-65055.
++ Incorporated by reference to exhibit bearing the same designation
and previously filed with the Securities and Exchange Commission as
exhibits to the Form S-3 File No. 333-01564.
_______________________________
<PAGE>
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE TRUST INDENTURE ACT OF 1939 THE
TRUSTEE, TEXAS COMMERCE BANK NATIONAL ASSOCIATION, A NATIONAL BANKING
ASSOCIATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE UNITED STATES OF
AMERICA, HAS DULY CAUSED THIS STATEMENT OF ELIGIBILITY TO BE SIGNED ON ITS
BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, ALL IN THE CITY OF
HOUSTON AND STATE OF TEXAS, ON THE 18TH DAY OF APRIL, 1996.
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
By: /s/ Wayne Mentz
-------------------------------
Wayne Mentz
Assistant Vice President
