FORM 10-Q
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1994
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
---- ----
Commission File Number 1-7833
CBI INDUSTRIES, INC.
Incorporated in Delaware IRS Identification Number: 36-3009343
Principal Executive Offices: 800 Jorie Boulevard
Oak Brook, Illinois 60521-2268
Telephone Number: (708) 572-7000
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
YES X NO
----- -----
The number of shares outstanding of a single class of common stock as of
March 31, 1994 - 37,817,537.
1 of 17
CBI INDUSTRIES, INC. AND SUBSIDIARIES
Table of Contents
PART I. FINANCIAL INFORMATION
Financial Statements: Page
Statements of Income
Three Months Ended March 31, 1994 and 1993................. 3
Balance Sheets
March 31, 1994 and December 31, 1993....................... 4
Statements of Cash Flows
Three Months Ended March 31, 1994 and 1993................. 6
Notes to Financial Statements................................. 7
Management's Discussion and Analysis of Operating
Performance and Financial Condition........................... 10
PART II. OTHER INFORMATION............................................. 15
SIGNATURE PAGE.......................................................... 17
2
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<TABLE>
PART I - FINANCIAL INFORMATION
CBI INDUSTRIES, INC. AND SUBSIDIARIES
Statements of Income
<CAPTION>
Three Months
Thousands of dollars, Ended March 31,
except per share amounts 1994 1993
<S> <C> <C>
Revenues
Contracting Services $174,484 $166,966
Industrial Gases 197,525 192,405
Investments 29,874 38,555
--------- ---------
Total revenues 401,883 397,926
--------- ---------
Costs of services and products sold
Contracting Services 147,507 150,468
Industrial Gases 140,493 136,796
Investments 24,209 33,204
--------- ---------
Total costs of services and products sold 312,209 320,468
--------- ---------
Gross profit from operations 89,674 77,458
--------- ---------
Selling and administrative expense
Contracting Services 19,814 19,040
Industrial Gases 32,439 31,903
Investments 1,223 738
Corporate 4,766 4,398
--------- ---------
Total selling and administrative expense 58,242 56,079
--------- ---------
Income from operations 31,432 21,379
Interest expense (8,146) (5,462)
--------- ---------
Income before income taxes and minority interest 23,286 15,917
Provision for income taxes (11,500) (7,000)
--------- ---------
Income before minority interest 11,786 8,917
Minority interest in income (2,113) (3,333)
--------- ---------
Net income 9,673 5,584
Dividends on preferred shares (1,501) (1,435)
--------- ---------
Net income to common shareholders $ 8,172 $ 4,149
========= =========
Net income per common share
Primary $ 0.22 $ 0.11
Fully diluted 0.20 0.11
Average common shares outstanding (thousands)
Primary 37,680 36,873
Fully diluted 43,257 42,344
Dividends on common shares
Amount $ 4,535 $ 4,422
Per share 0.12 0.12
<F1>
The accompanying notes are an integral part of these financial statements.
</TABLE>
3
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<TABLE>
CBI INDUSTRIES, INC. AND SUBSIDIARIES
Balance Sheets
Assets
<CAPTION>
March 31, Dec. 31,
Thousands of dollars 1994 1993
<S> <C> <C>
Current assets
Cash $ 14,336 $ 6,224
Temporary cash investments 25,214 17,005
Accounts receivable, less allowances
of 10,700 and 11,500 248,901 283,952
Contracts in progress with earned revenues
exceeding related progress billings 67,224 61,823
Inventories (Note 2) 61,765 63,644
Other current assets 43,098 38,626
--------- ---------
Total current assets 460,538 471,274
--------- ---------
Other assets
Notes receivable 36,889 33,057
Real estate properties 26,589 26,721
Equity in unconsolidated affiliates 60,098 65,506
Intangible assets 79,076 78,278
Other non-current assets 60,462 64,444
--------- ---------
Total other assets 263,114 268,006
--------- ---------
Property and equipment
Land and improvements 70,221 67,700
Buildings and improvements 185,966 187,203
Plant machinery and terminals 892,280 848,710
Field and office equipment 600,322 596,239
--------- ---------
1,748,789 1,699,852
Accumulated depreciation (583,333) (568,887)
--------- ---------
Net property and equipment 1,165,456 1,130,965
--------- ---------
$1,889,108 $1,870,245
========= =========
<F1>
The accompanying notes are an integral part of these financial statements.
</TABLE>
4
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<TABLE>
CBI INDUSTRIES, INC. AND SUBSIDIARIES
Balance Sheets (Continued)
Liabilities and Shareholders' Equity
<CAPTION>
March 31, Dec. 31,
Thousands of dollars 1994 1993
<S> <C> <C>
Current liabilities
Notes payable $ 76,976 $ 43,472
Current maturities of long-term debt (Note 3) 24,197 25,226
Accounts payable 56,662 66,558
Dividends payable 688 2,790
Accrued liabilities 127,616 137,871
Contracts in progress with progress billings
exceeding related earned revenues 58,130 52,198
Income taxes payable 21,808 16,955
--------- ---------
Total current liabilities 366,077 345,070
--------- ---------
Long-term debt (Note 3) 600,456 607,579
--------- ---------
Other non-current liabilities 130,256 130,494
--------- ---------
Deferred income taxes 38,744 42,867
--------- ---------
Minority interest in subsidiaries 67,874 67,623
--------- ---------
Shareholders' investment
Preferred stock
Series C (Note 4) 119,681 120,318
Unallocated ESOP shares (Note 6) (2,740) (3,654)
Unamortized ESOP debt (Note 6) (81,965) (83,584)
--------- ---------
Total preferred stock 34,976 33,080
--------- ---------
Common stock
Common stock (Note 5) 99,459 99,459
Additional paid-in capital 214,320 214,320
Retained earnings 434,904 427,828
Unamortized restricted stock awards (13,281) (8,498)
Unallocated ESOP shares (Note 6) (698) (931)
Unamortized ESOP debt (Note 6) (18,249) (18,609)
Cost of reacquired common stock (Note 5) (39,420) (45,353)
Cumulative translation adjustment (26,310) (24,684)
--------- ---------
Total common stock 650,725 643,532
--------- ---------
Total shareholders' investment 685,701 676,612
--------- ---------
$1,889,108 $1,870,245
========= =========
<F1>
The accompanying notes are an integral part of these financial statements.
</TABLE>
5
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<TABLE>
CBI INDUSTRIES, INC. AND SUBSIDIARIES
Statements of Cash Flows
<CAPTION>
Three Months
Thousands of dollars Ended March 31,
1994 1993
<S> <C> <C>
Cash flows from operating activities
Net income $ 9,673 $ 5,584
Depreciation 24,837 23,793
-------- --------
34,510 29,377
Decrease/(increase) in accounts receivable 36,119 (9,436)
Decrease in contracts in progress, net 531 3,763
(Decrease) in accounts payable,
accrued liabilities and income taxes, net (14,794) (3,763)
(Decrease)/increase in deferred income taxes (2,174) 1,252
Decrease in undistributed earnings
of unconsolidated affiliates 111 799
Other, net 3,608 969
-------- --------
Total cash flows from operating activities 57,911 22,961
-------- --------
Cash flows from capital investment activities
Purchase of property and equipment (67,540) (42,174)
Disposition of property and equipment 2,216 2,397
Decrease/(increase) in other assets, net 1,681 (87)
Other, net 3,101 846
-------- --------
Total cash flows from capital investment activities (60,542) (39,018)
-------- --------
Cash flows from financing and shareholder activities
Issuance of debt 44,809 89,389
Repayment of debt (19,191) (69,230)
-------- --------
25,618 20,159
Sale of common stock 2,328 1,073
Purchase of common stock (264) (898)
Dividends paid (8,730) (8,734)
-------- --------
Total cash flows from financing and shareholder activities 18,952 11,600
-------- --------
Increase/(decrease) in cash and temporary cash investments $ 16,321 $ (4,457)
======== ========
<F1>
The accompanying notes are an integral part of these financial statements.
</TABLE>
6
<PAGE>
CBI INDUSTRIES, INC. AND SUBSIDIARIES
Notes to Financial Statements
March 31, 1994
Thousands of dollars
(1) Additional Information
The consolidated financial statements included herein have been prepared
by CBI Industries, Inc. and Subsidiaries (CBI), without audit, pursuant
to the rules and regulations of the Securities and Exchange Commission.
Certain information and footnote disclosures, normally included in
financial statements prepared in accordance with generally accepted
accounting principles, have been condensed or omitted pursuant to such
rules and regulations, although CBI believes that the disclosures are
adequate to make the information presented not misleading. These
consolidated financial statements should be read in conjunction with the
consolidated financial statements and the notes thereto included in the
1993 annual report on Form 10-K of CBI.
In the opinion of CBI, all adjustments necessary to present fairly the
financial position of CBI as of March 31, 1994 and the results of its
operations and cash flows for the period then ended have been included.
The results of operations for such interim periods are not necessarily
indicative of the results for the full year.
(2) Inventories
Inventories by component and valuation method at March 31, 1994:
Raw materials and supplies $30,740
Work in process 5,400
Finished goods 25,625
-------
Total inventories $61,765
=======
Average cost method $49,421
First-in, first-out method 12,344
-------
Total inventories $61,765
=======
7
<PAGE>
(3) Long-Term Debt
Summary of long-term debt at March 31, 1994:
Commercial Paper and Other Similar Borrowings with a weighted
average quarter-end interest rate of 3.6% $238,755
6-1/4% Notes due 2000, net of unamortized discount of $271 74,729
6-5/8% Notes due 2003, net of unamortized discount of $524 74,476
Senior ESOP Notes with a quarter-end interest rate of 8.354%,
maturing in 1994 through 2002 98,836
Variable Rate Secured Notes with a weighted average quarter-
end interest rate of 4.9%, maturing in 1994 through 2001 64,800
Variable Rate Unsecured Notes with a weighted average quarter-
end interest rate of 5.5%, maturing in 1994 through 1998 66,894
Fixed Rate Secured Notes with a weighted average quarter-end
interest rate of 9.6%, maturing in 1994 through 1998 1,166
Fixed Rate Unsecured Notes with a weighted average quarter-
end interest rate of 8.8%, maturing in 1994 through 1997 3,930
Capital Lease Obligations with a weighted average quarter-end
interest rate of 13.1%, payable through 1996 725
Other 342
--------
624,653
Less: current maturities (24,197)
--------
$600,456
========
Commercial paper and other similar borrowings, which would normally be
classified as current debt, have been classified as long-term debt since
this debt is supported by unused commitments under an existing $300,000
unsecured three-year extendible revolving credit agreement. The
agreement has a present termination date of December 31, 1996, which is
extendible annually for one additional year by mutual consent. Amounts
borrowed under the agreement may be repaid under certain options and a
commitment fee is payable on any unused portion.
Minimum annual principal payments of long-term debt are as follows:
April 1 through December 31, 1994 $ 17,070
Year ending December 31, 1995 25,191
Year ending December 31, 1996 269,555
Year ending December 31, 1997 25,175
Year ending December 31, 1998 46,273
Year ending December 31, 1999 20,085
After 1999 221,304
--------
$624,653
========
8
(4) Preferred Stock
Preferred stock - $1.00 par value; authorized - 20,000,000 shares.
Series A - No shares have been issued. 800,000 shares are reserved as
Series A Junior Participating Preferred Stock.
Series C - 3,693,859 shares are issued as Convertible Voting Preferred
Stock, Series C, at March 31, 1994 and 3,713,519 shares at December 31,
1993. The annual dividend is $2.27 per share.
(5) Common Stock
Common stock - $2.50 par value; authorized - 120,000,000 shares; issued
- 39,783,614 shares at March 31, 1994 and December 31, 1993.
Reacquired stock - The number of reacquired shares of common stock was
1,966,077 at March 31, 1994 and 2,273,761 at December 31, 1993.
(6) Employee Stock Ownership Plan (ESOP)
Unallocated ESOP shares - Shares received and purchased from the
transfer of the surplus assets from the terminated and restructured
defined benefit pension plans are reflected as unallocated ESOP shares.
These shares are being allocated to eligible employees over a period of
eight years beginning in 1987. As of March 31, 1994, 68,459 common
shares and 102,306 Series C preferred shares are subject to future
allocation.
Unamortized ESOP debt - The Senior ESOP Notes, which were issued in
1988, in an amount of $125,000, were initially offset by a like amount
of unamortized ESOP debt in shareholders' investment. As company
contributions plus the dividends on the shares held by the ESOP are used
to meet interest and principal payments on the loan over its 14-year
term, shares acquired with the loan proceeds are allocated to eligible
employees. As of March 31, 1994, 808,750 common shares and 2,060,055
Series C preferred shares are subject to future allocation.
(7) Unconsolidated Affiliates - Summarized Financial Information
Summarized financial information for unconsolidated affiliates (50% or
less owned companies) follows. Intercompany transactions have not
been eliminated.
Three Months
Ended
March 31,
1994
-------------
Revenues $77,303
Gross profit 28,497
Income before income taxes 10,560
Net income 8,256
CBI's equity in net income 2,316
9
Management's Discussion and Analysis
of Operating Performance and Financial Condition
The following discussion and analysis should be read in conjunction with
the consolidated financial statements and accompanying notes.
OPERATING PERFORMANCE
OVERVIEW. Consolidated net income for the first quarter ended March 31,
1994 was $9.7 million ($0.22 per common share) compared to $5.6 million
($0.11 per common share) for the first quarter of 1993.
Revenues for the first three months of 1994 were $401.9 million, up 1.0%
from $397.9 million in revenues in the first quarter of 1993, due to an
improvement in the Contracting Services segment as well as the
continuing growth in the company's Industrial Gases business. This
improvement was partially offset by a managed decline in revenues in the
Investments segment, as Statia Terminals reduced its sales of low-
margined petroleum products. Gross profit of $89.7 million (22.3% of
revenues) in 1994's first quarter compared to $77.5 million (19.5% of
revenues) in the previous year's first quarter, reflecting both the
increase in revenues and better margins in Contracting Services as well
as better margins in the Investments segment. Selling and
administrative expenses increased 3.9% from $56.1 million in 1993 to
$58.2 million in the first quarter of 1994. Income from operations of
$31.4 million in the quarter (7.8% of revenues) was up 47.0% from 1993's
income from operations of $21.4 million (5.4% of revenues), while cash
flow from operations increased by 45.0% to $68.9 million.
CBI's comparative operating performance (before interest and taxes) for
the first quarters of 1994 and 1993 is as follows (dollars in
thousands):
1994 1993
---- ----
Revenues $401,883 $397,926
Costs 312,209 320,468
-------- --------
Gross profit 89,674 77,458
Gross profit-% 22.3% 19.5%
Selling and administrative 58,242 56,079
-------- --------
Income from operations 31,432 21,379
Income from operations-% 7.8% 5.4%
Depreciation 24,837 23,793
Other non-cash charges 12,592 2,304
-------- --------
Cash flow from operations $ 68,861 $ 47,476
======== ========
10
CONTRACTING SERVICES. The operating results of Chicago Bridge and Iron
Company during the quarters ended March 31, 1994 and 1993 are as follows
(dollars in thousands):
1994 1993
---- ----
Revenues $174,484 $166,966
Costs 147,507 150,468
-------- --------
Gross profit 26,977 16,498
Gross profit-% 15.5% 9.9%
Selling and administrative 19,814 19,040
-------- --------
Income from operations $ 7,163 $ (2,542)
Income from operations-% 4.1% (1.5)%
======== ========
New contract awards during the first quarter of 1994 amounted to $221.9
million, a 77.2% improvement over the $125.3 million of new business
recorded in the first quarter of 1993. While substantially greater than
in the comparable quarter of 1993, new contract awards in 1994's first
quarter represented a more current market level of orders as compared to
the extraordinary new order total of the last quarter of 1993, when
$332.4 million in new business was received. About 60% of new orders in
the first quarter of 1994 were for work within the U.S., although the
company was awarded a contract in excess of $40 million in the Asia-
Pacific market area. The current backlog of work to be executed in the
future amounted to $475.7 million as of March 31, 1994, as compared to
$424.9 million at December 31, 1993 and $284.0 million at March 31,
1993.
Revenues in the first quarter of 1994 were up 4.5% over the previous
year, reflecting the realization of the stronger order flow experienced
since mid-1993. Approximately 55% of 1994 revenues were from domestic
work, somewhat less than the domestic share of revenues in the previous
year, as Chicago Bridge's international units increased their activities
in Africa, Southeast Asia and the Caribbean. Ershig's, a company
specializing in fiberglass-reinforced plastic and dual laminate vessels
and tanks which was acquired by Chicago Bridge in the second quarter of
1993, contributed revenues during the current quarter which accounted
for a portion of the revenue gain in the first quarter of 1994.
Income from operations was positive in the first three months of 1994 in
contrast to the operating loss sustained in the first quarter of 1993
when reserves were established for the closing of an Alabama fabrication
facility. Results in the current quarter also modestly benefited from
the favorable resolution of certain international contract claims and a
gain from the sale of property to the U.S. Navy. While operating income
improved on both domestic and international work, margins on work put in
place continued to reflect the effects of generally uncertain economic
conditions affecting Chicago Bridge's major customers as well as the
unresolved environmental requirements facing the company's process
industry customers. Results in the quarter also do not reflect any
adjustments to previously established reserves for the unexpected
verdict and resulting $31.5 million judgment entered against CBI Na-Con
on April 6 in the previously reported Marathon Oil case in Houston,
Texas. This judgment was revised to $33.5 million on May 6, 1994 as a
result of a different calculation of prejudgment interest. Because the
amount CBI Na-Con may yet be required to pay in this matter is uncertain
due to the continued court actions which are pending, additional
reserves, if any, beyond those previously established will be reviewed
and established as needed.
11
INDUSTRIAL GASES. Liquid Carbonic's performance for the first quarters
of 1994 and 1993 is as follows (dollars in thousands):
1994 1993
---- ----
Revenues $197,525 $192,405
Costs 140,493 136,796
-------- --------
Gross profit 57,032 55,609
Gross profit-% 28.9% 28.9%
Selling and administrative 32,439 31,903
-------- --------
Income from operations $ 24,593 $ 23,706
Income from operations-% 12.5% 12.3%
======== ========
Revenues in the Industrial Gases segment increased 2.7% year-to-year
due mainly to an 8% growth in revenues outside North America, including
the results of two Polish atmospheric gas companies acquired in the
second quarter of 1993. The 1993 results include approximately $3
million in revenues of product lines since discontinued or sold.
Revenues increased in all geographic areas except Canada, where the
adverse economic conditions which continue to depress Liquid Carbonic's
markets in that country, coupled with a lower exchange rate for the
Canadian dollar, caused a 6% decline in revenues from the comparable
1993 quarter.
Income from operations increased 3.7% from 1993 to 1994 and improved
slightly as a percent of revenues, due to the continuing growth of
revenues outside North America where the company enjoys better profit
margins. Operating margins in certain Latin American countries were,
however, affected by Liquid Carbonic's recent expansion into the
precipitated calcium carbonate market, where margins are lower than in
the company's historical lines of business. Operating margins in the
United States improved year-to-year, particularly in the cylinder gas
business due to the positive effect from the sale of the lower-margined
retail operations. These improvements were partially offset by the
impact of domestic carbon dioxide selling prices, which were
approximately 3% lower in the first quarter of 1994 than in the
comparable 1993 quarter. Unit volumes of all gases sold in the U.S.,
however, increased in year-to-year comparisons.
Reductions in selling and administrative expenses in the U.S. also
contributed to the improvement in operating margins. Impacts from Liquid
Carbonic's restructuring program were not yet felt in the first quarter,
but are expected to begin being reflected in results during the second
quarter of 1994.
12
INVESTMENTS. The operating results of Statia Terminals and the
contributions from financial investments comprising the Investments segment
for the first quarters of 1994 and 1993 are as follows (dollars in
thousands):
1994 1993
---- ----
Revenues $29,874 $38,555
Costs 24,209 33,204
------- -------
Gross profit 5,665 5,351
Gross profit-% 19.0% 13.9%
Selling and administrative 1,223 738
------- -------
Income from operations $ 4,442 $ 4,613
Income from operations-% 14.9% 12.0%
======= =======
Revenues for the current quarter declined 22.5% from the same quarter in
1993, but gross profit was up 5.9% due to a change in the mix of product
revenues in Statia Terminals, where sales of low-margined petroleum
products declined approximately $12 million from the first quarter of 1993
compared to the current quarter, while storage fee revenue and higher
margined sales of bunker fuel increased about $3 million. Selling and
administrative expense increased from the previous year due in part to the
inclusion in 1994 of the results of Statia Terminals Point Tupper, a
Canadian terminal company of which Statia Terminals became sole owner in
October 1993, and in part to a reclassification in 1994 of certain charges
previously included in costs of revenues. Statia's income from operations
resulted in a nearly 10% improvement over the same period in 1993.
Other than Statia Terminals, the other investments in the segment recorded
lower income from operations compared to 1993, primarily due to the
inclusion in the first quarter of 1993 of a gain from the sale of an
investment. Returns from other financial investments, net of foreign
currency exchange effects, were greater in 1994 than in 1993.
13
OTHER INCOME STATEMENT MATTERS. Interest expense in the first quarter of
1994 amounted to $8.1 million compared to $5.5 million in the comparable
quarter of 1993, reflecting higher debt levels and the issuance of $150
million in
long-term debt, $75 million each in March and July of 1993. The estimated
effective income tax rates were 49.4% in the first quarter of 1994,
compared to 44.0% in 1993; however, the 1993 effective income tax rate was
adjusted upward in subsequent quarters and averaged 49.0% for all of 1993.
CBI's effective
income tax rate continues to be higher than the statutory U.S. tax rate
because its taxable domestic earnings remain low relative to earnings from
its international operations.
Fully diluted earnings per share, assuming the conversion of the company's
Series C Convertible Voting Preferred Stock as required by accounting
disclosure rules, was $0.20 for the first quarter of 1994 and $0.11 for the
comparable quarter of 1993.
FINANCIAL CONDITION
BALANCE SHEET. CBI's financial position and capital resources are adequate
to permit the financing of its operations. Cash and short-term investments
totalled $39.6 million at March 31, 1994, compared to $23.2 million at
December 31, 1993. Working capital decreased from $126.2 million at the
end of 1993 to $94.5 million, due to an increase of $32.5 million in short-
term debt, most of which will be reclassified as long-term, non-current
debt under an international revolving credit agreement now being expanded,
and a reduction of $35.1 million in accounts receivable. Total debt (notes
payable plus current and non-current long-term debt) increased from $676.3
million at December 31, 1993 to $701.6 million as a result of the company's
ongoing program of capital investment (see below). The ratio of total debt
to total capitalization (total debt plus shareholders' investment) was
50.6% at March 31, 1994, up from 50.0% at the end of 1993 and 40.9% at
March 31, 1993. With CBI's ESOP debt considered as equity, which will
occur as the common and preferred shares held by the ESOP Trust are
allocated to eligible employees, debt as a percent of capitalization was
43.5% at March 31, 1994, compared to 42.4% at December 31, 1993 and 32.0%
at March 31, 1993.
CAPITAL EXPENDITURES. Expenditures for new plant and equipment in the first
quarter of 1994 totalled $67.5 million, with $21.3 million dedicated to
sustaining the current level of business and $46.2 million invested in
increased capacity. Of the total expenditures, $53.4 million was invested
in Liquid Carbonic during the quarter. Capital expenditures for the first
quarter of 1993 amounted to $42.2 million.
14
PART II - OTHER INFORMATION
Item 1. Legal Proceedings
Marathon/Texas City Litigation
On October 30, 1987, CBI Na-Con, Inc. ("CBI Na-Con") was working in the
Marathon Petroleum Company refinery in Texas City, Texas. While a lift was
being made by a crane supplied and operated by others, the crane became
unstable, causing the operator to drop the load on a hydrofluoric acid tank
which released part of its contents into the atmosphere. The community
surrounding the refinery was evacuated after the incident, and a
substantial number of persons evacuated sought medical attention. CBI Na-
Con has reached settlements with all but about 15 of the 4,300
(approximate) third-party plaintiffs who brought suit as a result of the
incident.
CBI Na-Con also is a defendant in a lawsuit brought in 1989 by Marathon for
damage to Marathon's property, lost profits and cost of repair. In 1993 the
lawsuit was amended to include reimbursement for Marathon's expenditures
relating to the incident, including emergency response costs, third party
legal fees and claims payments. This lawsuit went to trial in March, 1994,
and after a trial that lasted approximately four weeks, a jury in Harris
County, Texas returned a verdict against CBI Na-Con. Judgment on the
verdict in the amount of approximately $31,500,000, which includes
prejudgment interest, was entered on April 6, 1994, against CBI Na-Con.
This judgment was revised to $33,500,000 on May 6, 1994, as a result of a
different calculation of prejudgment interest. The result in this case was
totally unexpected by CBI Na-Con, and CBI Na-Con believes the result was
incorrect in many respects, including the trial court's incorrect
application of substantive and procedural law with respect to liability,
evidence and damages. CBI Na-Con, Inc. is seeking relief through post
trial motions, and, if unsuccessful, will appeal to the Texas Court of
Appeals.
After CBI's insurers declined to indemnify CBI for this incident based on
certain pollution exclusions contained in CBI's insurance policies, CBI
filed suit in Harris County, Texas against its insurers seeking a court
ruling that the policies covered the incident. The Trial Court, on the
insurers' preliminary motion, sustained the insurers' position that
coverage did not exist. The Texas Court of Appeals reversed the Trial
Court and found that CBI should be allowed to proceed with its lawsuit and
related discovery against the insurers. The insurers immediately appealed
the Court of Appeals decision in CBI's favor to the Texas Supreme Court
which has agreed to hear the appeal. It is CBI's position that it was not
the intent of the pollution exclusions in the policies to exclude an
incident of this kind.
Because the amount CBI Na-Con may yet be required to pay in this matter is
uncertain due to the pending court actions, additional reserves, if any,
beyond those previously established will be reviewed and established as
needed.
Antitrust Matters
A subsidiary of the company, Liquid Carbonic Industries Corporation
("Liquid Carbonic"), has been or is currently involved in civil litigation
and governmental proceedings relating to antitrust matters. In this
regard, since April 1992, several lawsuits have been filed against Liquid
Carbonic and various competitors. These cases have been consolidated in
the United States District Court for the Middle District of Florida,
Orlando Division. The lawsuits allege generally that, beginning not later
than 1968 and continuing through October, 1992, defendants conspired to
allocate customers, fix prices and rig bids for carbon dioxide in the
United States in violation of the antitrust laws. On April 19, 1993, the
court certified a class in the consolidated cases consisting of direct
purchasers of carbon dioxide from defendants in the continental United
States for the period from January 1, 1968, to and including October 26,
1992.
15
Item 1. Legal Proceedings (Continued)
Plaintiffs seek from defendants unspecified treble damages, civil
penalties, injunctive relief, costs and attorneys' fees. In addition, suits
have been brought against Liquid Carbonic and others under the antitrust
laws of the States of Alabama and California based upon the foregoing
allegations. The Company believes that the allegations made against Liquid
Carbonic in these lawsuits are without merit, and Liquid Carbonic intends
to defend itself vigorously. Liquid Carbonic and its subsidiaries also
from time to time furnish documents and witnesses in connection with
governmental investigations of alleged violations of the antitrust laws.
While the outcome of any particular lawsuit or governmental investigation
cannot be predicted with certainty, the Company believes that these
antitrust matters will not have a materially adverse effect on its
operations or financial condition.
Environmental Litigation
Chicago Bridge & Iron Company ("Chicago Bridge") was a minority shareholder
from 1934 to 1954 in a company which owned or operated at various times
several wood treating facilities at sites in the United States, some of
which are currently under investigation, monitoring or remediation under
various environmental laws. Chicago Bridge is involved in litigation
concerning environmental liabilities, which are currently undeterminable,
in connection with certain of those sites. Chicago Bridge denies any
liability for each site and believes that the successors to the wood
treating business are responsible for cost of remediation of the sites.
Chicago Bridge has reached settlements for environmental clean-up at most
of the sites. The Company believes that any remaining potential liability
will not have a materially adverse effect on its operations or financial
condition.
Other Litigation
In addition to the above lawsuits, CBI is a defendant in a number of
lawsuits arising from the conduct of its business. While it is impossible
at this time to determine with certainty the ultimate outcome of this
litigation, CBI's management believes that adequate provisions have been
made for probable losses with respect thereto as best as can be determined
at this time and that the ultimate outcome, after provisions therefor, will
not have a material adverse effect on the financial position of CBI. The
adequacy of reserves applicable to the potential costs of being engaged in
litigation and potential liabilities resulting from litigation are reviewed
as developments in the litigation warrant.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
1. Underwriting Agreement
3. (ii) By-laws
As amended May 12, 1994.
4. Instruments Defining the Rights of Security Holders,
Including Indentures
4.1 Indenture
4.2 Form of Floating Rate Note
4.3 Form of Fixed Rate Note
11. Computation of Earnings per Common Share
(b) Reports on Form 8-K
A Form 8-K was filed under Item 5, Other Events and Item 7,
Financial Statements and Exhibits. The date of that report was
April 7, 1994.
16
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CBI INDUSTRIES, INC.
BY /s/ George L. Schueppert
_________________________________
George L. Schueppert
Executive Vice President - Finance
and Chief Financial Officer
Date: May 13, 1994
17
EXHIBIT 1
U.S. $100,000,000 (or the U.S. dollar equivalent at the time of
issue in certain specified foreign currencies or currency units.)
CBI INDUSTRIES, INC.
MEDIUM-TERM NOTES, SERIES A
DISTRIBUTION AGREEMENT
April 19, 1994
LEHMAN BROTHERS INC.
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
SALOMON BROTHERS INC
c/o LEHMAN BROTHERS
LEHMAN BROTHERS INC.
3 World Financial Center, 12th Floor
New York, New York 10285-1200
Dear Sirs:
CBI Industries, Inc., a Delaware corporation (the "Company"),
confirms its agreement with each of you (individually, an "Agent"
and collectively, the "Agents") (which terms shall, for all
purposes of this Agreement, include Lehman Special Securities Inc.,
an affiliate of Lehman Brothers Inc.) with respect to the issuance
and sale by the Company of up to an aggregate of $100,000,000* in
gross proceeds of its Medium-Term Notes, Series A (the "Notes").
The Notes are to be issued from time to time pursuant to an
indenture, dated as of March 1, 1994 (as it may be supplemented or
amended from time to time, the "Indenture"), between the Company
and Chemical Bank, as trustee (the "Trustee").
The Notes shall have the maturity ranges, applicable interest
rates or interest rate formulas, specified currency, issue price,
redemption and repayment provisions and other terms set forth in
the Prospectus referred to in Section 1(a) as it may be amended or
supplemented from time to time, including any supplement providing
for the interest rate, maturity and other terms of any Note (a
"Pricing Supplement"). The Notes will be issued, and the terms
thereof established, from time to time, by the Company in
accordance with the Indenture and the Procedures referred to below.
This Agreement shall only apply to sales of the Notes and not to
sales of any other securities or evidences of indebtedness of the
Company and only on the specific terms set forth herein.
Subject to the terms and conditions stated herein and to the
reservation by the Company of the right to sell the Notes directly
on its own behalf, the Company hereby (i) appoints each of the
Agents as the agent of the Company for the purpose of soliciting
and receiving offers to purchase Notes from the Company and (ii)
agrees that whenever the Company determines to sell Notes directly
to an Agent as principal it will enter into a separate agreement
(each a "Purchase Agreement"). Each such Purchase Agreement,
whether oral (and confirmed in writing, which may be by facsimile
transmission) or in writing, shall be with respect to such
information (as applicable) as specified in Exhibit C hereto,
relating to such sale in accordance with Section 2(e) hereof.
SECTION 1. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to each Agent as of the
date hereof, as of the Closing Date (defined herein) and as of the
times referred to in Sections 6(a) and 6(b) hereof (the Closing
Date and each such time being hereinafter sometimes referred to as
a "Representation Date"), as follows:
(a) General. A registration statement on Form S-3 with
respect to the Notes (i) has been prepared by the Company in
conformity in all material respects with the requirements of the
Securities Act of 1933, as amended (the "Act"), and the rules and
regulations of the Securities and Exchange Commission (the
"Commission") thereunder, (ii) has been filed with the Commission
under the Act and (iii) has become effective under the Act. If any
post-effective amendment to such registration statement has been
filed with the Commission prior to the execution and delivery of
this Agreement, the most recent such amendment has been declared
effective by the Commission. Copies of that registration statement
as amended to date have been delivered by the Company to you as an
Agent. As used in this Agreement, "Effective Time" means the date
and the time as of which such registration statement, or the most
recent post-effective amendment thereto, if any, was declared
effective by the Commission; "Effective Date" means the date of the
Effective Time; "Registration Statement" means that same
registration statement when it becomes effective under the Act,
including any documents incorporated by reference at that time; and
"Prospectus" means the prospectus or prospectus supplement as filed
with the Commission by the Company with the consent of the Agents
pursuant to Rule 424(b) of the Rules and Regulations, relating to
the offering and sale of the Notes. Reference made herein to the
Prospectus shall be deemed to refer to and include any documents
incorporated by reference therein as of the date of such Prospectus
and any reference to any amendment or supplement to the Prospectus
shall be deemed to refer to and include any documents filed under
the Securities Exchange Act of 1934 (the "Exchange Act") after the
date of such Prospectus and incorporated by reference in such
Prospectus. The Company has not received any order from the
Commission or otherwise preventing or suspending the use of any
Prospectus. For purposes of this Agreement, "Rules and
Regulations" means the rules and regulations adopted by the
Commission under either the Act or the Exchange Act as applicable.
(b) Registration Statement, Prospectus and Indenture:
Contents. The Registration Statement and the Prospectus conform,
and any post-effective amendment to the Registration Statement and
the Prospectus as amended or supplemented, including any document
filed by the Company after the Effective Date pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the
termination of the offering of the Notes ("Incorporated
Documents"), will conform, as of the applicable Representation Date
and at all times during each period during which, in the opinion of
counsel for the Agents, a prospectus relating to the Notes is
required to be delivered under the Act (each a "Marketing Period"),
in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the Rules and Regulations. The
Indenture conforms to the requirements of, and has been qualified
under, the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the applicable rules and regulations
thereunder. The Registration Statement (as of the Effective Time)
did not, and will not as of the applicable Representation Date and
at all times during each Marketing Period, and any post-effective
amendment thereto, the Prospectus and the Prospectus as amended or
supplemented (including Incorporated Documents) as of the date of
filing, and at all times during each Marketing Period, will not,
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in
order to make the statements made therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representation or warranty as to
that part of the Registration Statement which consists of the
Statement of Eligibility and Qualification on Form T-1 under the
Trust Indenture Act of the Trustee or as to information contained
in or omitted from the Registration Statement or the Prospectus in
reliance upon and in conformity with written information furnished
to the Company by the Trustee or the Agents specifically for
inclusion therein.
(c) No Defaults. Neither the Company nor any of its
significant subsidiaries (as defined in Rule 405 of the Rules and
Regulations) is in violation of its certificate of incorporation or
by-laws or is in default under any agreement, indenture or
instrument the effect of which violation or default would be
material to the Company and its subsidiaries taken as a whole. The
execution, delivery and performance of this Agreement and the
transactions contemplated hereby, including without limitation the
issuance and sale of the Notes by the Company, will not conflict
with, result in the creation or imposition of any lien, charge or
encumbrance upon any of the assets of the Company or any of its
subsidiaries pursuant to the terms of, or constitute a breach or
default under, any agreement, indenture or instrument, or result in
a violation of the certificate of incorporation or by-laws of the
Company or any of its subsidiaries or of any order, rule or
regulation of any court or governmental agency having jurisdiction
over the Company, any of its subsidiaries or their property.
Except as required by the Act, the Exchange Act and applicable
state securities laws, no consent, authorization or order of, or
filing or registration with, any court or governmental agency is
required for the execution, delivery and performance of this
Agreement.
(d) Due Organization: Company. The Company has been duly
incorporated and is validly existing and in good standing as a
corporation under the laws of the State of Delaware, with an
authorized and outstanding capital stock as set forth in the
Prospectus, is qualified to do business as a foreign corporation
and is in good standing in each of the several jurisdictions where
such qualification is required for the conduct of its business or
the lease or ownership of its principal properties and has all
necessary power and authority to transact its business as described
in the Prospectus.
(e) Due Organization: Subsidiaries. Each of the
subsidiaries of the Company has been duly incorporated and is
validly existing and in good standing as a corporation under the
laws of its jurisdiction of incorporation, is qualified to do
business as a foreign corporation and is in good standing in each
jurisdiction where such qualification is required for the conduct
of its business or the lease or ownership of its principal
properties, in each case except where the failure to be duly
incorporated, in good standing or so qualified would not materially
adversely affect the business of the Company and its subsidiaries
taken as a whole. Each of the subsidiaries has all necessary power
and authority to transact the business in which it is presently
engaged.
(f) Material Adverse Change. Except as set forth in or
contemplated by the Registration Statement and the Prospectus,
since the date of the latest audited financial statements of the
Company included in the Registration Statement and Prospectus,
there has not been any material adverse change in the condition of
the Company and its subsidiaries taken as a whole, financial or
otherwise, or in the results of operations or prospects of the
Company and its subsidiaries taken as a whole; except as set forth
in or contemplated by the Registration Statement or the Prospectus,
neither the Company nor any of its subsidiaries has incurred any
liability or obligation or entered into any transactions, in each
case material to the Company and its subsidiaries taken as a whole,
since the respective dates as of which information is given in the
Registration Statement and the Prospectus otherwise than in the
ordinary course of business; and, there has been no change in the
consolidated financial position of the Company and its subsidiaries
since the date of the most recent audited balance sheet included or
incorporated by reference in the Registration Statement except (i)
changes in the ordinary course of business which have not been,
either individually or in the aggregate, materially adverse to the
Company or (ii) changes described in or contemplated by the
Registration Statement and the Prospectus.
(g) Permits; Intellectual Property. The Company holds all
material tariffs, licenses, certificates and permits from
governmental authorities necessary for the conduct of its business
as described in the Prospectus and owns or possesses adequate
rights to use all material patents, patent applications,
trademarks, service marks, tradenames, trademark registrations,
service mark registrations, copyrights and licenses necessary for
the conduct of such business and has not received any notice of
conflict with the asserted rights of others in respect thereof.
(h) Ownership of Property. The Company and its subsidiaries
have good and marketable title in fee simple to all real property
owned by them and good and marketable title to such of their
personal property owned by them that is, when considered either
individually or in the aggregate, necessary to the operations of
the Company or any of its subsidiaries, as the case may be, in each
case free and clear of all liens, encumbrances and defects except
such as are described in the Prospectus or such as do not
materially affect the value of such property and do not interfere
with the use made and proposed to be made of such property by the
Company and its subsidiaries; and any real property and buildings
held under lease by the Company and its subsidiaries that are, when
considered either individually or in the aggregate, necessary to
the operations of the Company or any of its subsidiaries, as the
case may be, are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do
not interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries.
(i) Legal Proceedings. Except as set forth in the
Registration Statement and the Prospectus, neither the Company nor
any of its subsidiaries has any litigation or governmental,
administrative or other proceeding pending or threatened of a
character which (a) could reasonably be expected to result in a
judgment or decree having a material adverse effect on the business
or financial condition of the Company and its subsidiaries taken as
a whole, or (b) is required to be disclosed in the Registration
Statement or the Prospectus.
(j) Compliance with Law. The Company is not in violation of
any law, ordinance, governmental rule or regulation or court decree
to which it may be subject nor has it failed to obtain any tariff,
license, permit, franchise or other governmental authorization
necessary to the ownership of its property or to the conduct of its
business, which violation or failure to obtain is likely to have a
material adverse effect on the condition (financial or other),
properties, prospective results of operations or net worth of the
Company and its subsidiaries, taken as a whole.
(k) Accountants. To the best of the Company's knowledge,
Arthur Andersen & Co., whose report appears in the Company's Annual
Report on Form 10-K for the most recent year which is incorporated
in the Prospectus by reference, are independent public accountants
as required by the Act and the Rules and Regulations.
(l) Due Authorization. The filing of the Registration
Statement and the execution and delivery of this Agreement and each
applicable Purchase Agreement, if any, and the consummation of the
transactions contemplated hereby and thereby have been or will be
duly authorized by the board of directors of the Company, and all
necessary corporate action to authorize and approve the same has
been taken. The Notes have been duly authorized and, when issued,
authenticated and delivered pursuant to the Indenture against
payment of the agreed upon consideration therefor pursuant to this
Agreement, such Notes will have been duly executed, authenticated,
issued and delivered and will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the
Indenture, which is in the form filed as an exhibit to the
Registration Statement, and will be enforceable in accordance with
their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or other similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity; the
Indenture has been duly authorized and is duly qualified under the
Trust Indenture Act and constitutes a valid and legally binding
obligation of the Company, enforceable in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting
enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity; and
the Indenture conforms and the Notes, when issued, will conform to
the descriptions thereof contained in the Registration Statement
and the Prospectus. None of the Notes will be, on the Closing
Date, subject to any lien, claim, encumbrance, preemptive rights or
any other claim of any third party, other than those created or
incurred by any Agent.
(m) Common Stock. All of the authorized shares of the Common
Stock of the Company have been validly authorized and are fully
paid and nonassessable with no personal liability attaching to the
ownership thereof.
(n) Financial Statements. The consolidated financial
statements included or incorporated by reference as part of the
Registration Statement or the Prospectus present fairly, and the
financial statements in any Incorporated Document will present
fairly, as of the applicable Representation Date and at all times
during each Marketing Period, the financial condition and results
of operations of the entities purported to be shown thereby, at the
dates and for the periods indicated, and have been prepared, and in
the case of financial statements included in any Incorporated
Document will be prepared, in conformity with generally accepted
accounting principles applied on a consistent basis throughout the
period or periods involved; and the supporting schedules included
or incorporated by reference in the Prospectus present, and will
present as of the applicable Representation Date and at all times
during each Marketing Period, fairly and will present fairly the
information required to be stated therein.
(o) Documents Incorporated by Reference. Since the end of
its latest fiscal year, the Company has timely filed all documents
and amendments to previously filed documents required to be filed
by it pursuant to Sections 12, 13, 14 and 15(d) of the Exchange
Act. The documents incorporated by reference into the Prospectus
as of the respective dates of filing with the Commission were, and
each Incorporated Document will be, prepared by the Company in
conformity in all material respects with the requirements of the
Exchange Act and the Rules and Regulations, and such documents have
been timely filed, or in the case of Incorporated Documents will be
timely filed, as required thereby. True copies of each of the
documents incorporated by reference into the Prospectus have been,
and Incorporated Documents will be, promptly delivered by the
Company to the Agents.
(p) Exhibits to Registration Statement. There are no
contracts or other documents that are required to be filed as
exhibits to the Registration Statement by the Act or by the Rules
and Regulations or which were required to be filed as exhibits to
any document incorporated by reference in the Prospectus by the
Exchange Act or the Rules and Regulations which have not been filed
as exhibits to the Registration Statement, or incorporated therein
by reference as permitted by the Rules and Regulations, or that are
required to be summarized in the Prospectus that are not so
summarized.
(q) Registration Rights. No person has the right to require
the Company to register any securities for offering and sale under
the Act by reason of filing of the Registration Statement with the
Commission or the issue and sale of the Notes by the Company.
(r) Price Manipulation. The Company has not taken and will
not take, directly or indirectly, any action which is designed to
cause or result in, or which has constituted or which might
reasonably be expected to constitute, the stabilization or
manipulation of the price of the Notes to facilitate the sale or
resale of the Notes.
SECTION 2. SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL
(a) Appointment. Subject to the terms and conditions stated
herein, the Company hereby appoints each of the Agents as the
exclusive agents of the Company for the purpose of soliciting or
receiving offers to purchase the Notes from the Company by others.
On the basis of the representations and warranties contained
herein, but subject to the terms and conditions herein set forth,
each Agent agrees, as the exclusive agents of the Company, to use
its reasonable efforts to solicit offers to purchase the Notes upon
the terms and conditions set forth in the Prospectus. Except as
otherwise provided herein, so long as this Agreement shall remain
in effect with respect to any Agent, the Company shall not, without
the consent of each such Agent, solicit or accept offers to
purchase Notes otherwise than through one of the Agents provided,
however, the Company expressly reserves the right to sell Notes
directly to investors. Each Agent may also purchase Notes from the
Company as principal for purposes of resale, as more fully
described in paragraph (e) of this Section.
(b) Suspension of Solicitation. The Company reserves the
right, in its sole discretion, to suspend solicitation of offers to
purchase the Notes commencing at any time for any period of time or
indefinitely. Upon receipt of at least one business day's prior
written notice from the Company, the Agents will forthwith suspend
solicitation of offers to purchase Notes from the Company until
such time as the Company has advised the Agents that such
solicitation may be resumed. For the purpose of the foregoing
sentence, "business day" shall mean any day which is not a Saturday
or Sunday and which is not a day on which (i) banking institutions
are generally authorized or obligated by law to close in The City
of New York and (ii) The New York Stock Exchange, Inc. is closed
for trading.
Upon receipt of notice from the Company as contemplated
by Section 3(c) hereof, each Agent shall suspend its solicitation
of offers to purchase Notes until such time as the Company shall
have furnished it with an amendment or supplement to the
Registration Statement or the Prospectus, as the case may be,
contemplated by Section 3(c) and shall have advised such Agent that
such solicitation may be resumed.
(c) Agent's Commission. Promptly upon the closing of the
sale of any Notes sold by the Company as a result of a solicitation
made by or offer to purchase received by an Agent, the Company
agrees to pay such Agent a commission, in the form of a discount,
in accordance with the schedule set forth in Exhibit A hereto.
(d) Solicitation of Offers. The Agents are authorized to
solicit offers to purchase the Notes only in denominations as are
specified in the Prospectus at a purchase price as shall be
specified by the Company. Each Agent shall communicate to the
Company, orally or in writing, each reasonable offer to purchase
Notes received by it as an Agent. The Company shall have the sole
right to accept offers to purchase the Notes and may reject any
such offer in whole or in part. Each Agent shall have the right,
in its discretion reasonably exercised without advising the
Company, to reject any offer to purchase the Notes received by it,
in whole or in part, and any such rejection shall not be deemed a
breach of its agreement contained herein.
No Note which the Company has agreed to sell pursuant to
this Agreement shall be deemed to have been purchased and paid for,
or sold by the Company, until such Note shall have been delivered
to the purchaser thereof against payment by such purchaser.
(e) Purchases as Principal. Each sale of Notes to any Agent
as principal, for resale to one or more investors or to another
broker-dealer (acting as principal for purposes of resale), shall
be made in accordance with the terms of this Agreement and a
Purchase Agreement whether oral (and confirmed in writing by such
Agent to the Company, which may be by facsimile transmission) or in
writing, which will provide for the sale of such Notes to, and the
purchase thereof by, such Agent. A Purchase Agreement may also
specify certain provisions relating to the reoffering of such Notes
by such Agent. The commitment of any Agent to purchase Notes from
the Company as principal shall be deemed to have been made on the
basis of the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions herein
set forth. Each Purchase Agreement shall specify the principal
amount and terms of the Notes to be purchased by an Agent, the time
and date (each such time and date being referred to herein as a
"Time of Delivery") and place of delivery of and payment for such
Notes and such other information (as applicable) as is set forth in
Exhibit C hereto. The Company agrees that if any Agent purchases
Notes as principal for resale such Agent shall receive such
compensation, in the form of a discount or otherwise, as shall be
indicated in the applicable Purchase Agreement or, if no
compensation is indicated therein, a commission in accordance with
Exhibit A hereto. Any Agent may utilize a selling or dealer group
in connection with the resale of such Notes. In addition, any
Agent may offer the Notes they have purchased as principal to other
dealers. Any Agent may sell Notes to any dealer at a discount and,
unless otherwise specified in the applicable Pricing Supplement,
such discount allowed to any dealer will not be in excess of 100%
of the discount to be received by such Agent from the Company.
Such Purchase Agreement shall also specify any requirements for
delivery of opinions of counsel, accountant's letters and officers'
certificates pursuant to Section 5 hereof.
(f) Administrative Procedures. Administrative procedures
respecting the sale of Notes (the "Procedures") are set forth in
Exhibit B hereto and may be amended in writing from time to time by
the Agents and the Company. Each Agent and the Company agree to
perform the respective duties and obligations specifically provided
to be performed by each of them herein and in the Procedures. The
Procedures shall apply to all transactions contemplated hereunder
including sales of Notes to any Agent as principal pursuant to a
Purchase Agreement, unless otherwise set forth in such Purchase
Agreement.
(g) Delivery of Documents. The documents required to be
delivered by Section 5 hereof shall be delivered at the offices of
Mayer, Brown & Platt, 190 South LaSalle Street, Chicago, Illinois
60603, not later than 10:00 A.M., Chicago time, on the date of this
Agreement or at such later time as may be mutually agreed upon by
the Company and the Agents, which in no event shall be later than
the time at which the Agents commence solicitation of offers to
purchase Notes hereunder (the "Closing Date").
SECTION 3. COVENANTS OF THE COMPANY
The Company covenants and agrees:
(a) Delivery of Signed Registration Statement. To furnish
promptly to the Agents and to counsel to the Agents a signed copy
of the Registration Statement as originally filed with the
Commission, and each amendment thereto filed with the Commission,
including all documents incorporated therein by reference and
Incorporated Documents and all consents and exhibits filed
therewith.
(b) Delivery of Other Documents. To deliver promptly to the
Agents such number of conformed copies of the Registration
Statement as originally filed and each amendment thereto and such
number of the Prospectus, any amended or supplemented Prospectus,
documents incorporated by reference in any of the foregoing
documents and any Incorporated Documents, as the Agents may
reasonably request.
(c) Revisions to Prospectus - Material Changes. If, during
any Marketing Period, any event occurs as a result of which the
Prospectus would include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein not misleading, or if it is necessary at any time to amend
any Prospectus to comply with the Act, to notify the Agents
promptly, in writing, to suspend solicitation of purchases of the
Notes; and if the Company shall decide to amend or supplement the
Registration Statement or any Prospectus, to promptly advise the
Agents by telephone (with confirmation in writing) and to promptly,
in writing, prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or an
amendment which will effect such compliance; provided, however,
that if during the period referred to above any Agent shall own any
Notes which it has purchased from the Company as principal with the
intention of reselling them, the Company shall promptly prepare and
timely file with the Commission any amendment or supplement to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may be, in the judgment of the Agents, required by
the Act or requested by the Commission and approved by the Agents.
(d) Commission Filings. To timely file with the Commission
during any Marketing Period, all documents (and any amendments to
previously filed documents) required to be filed by the Company
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act.
(e) Copies of Filings with Commission. Prior to filing with
the Commission during any Marketing Period, (i) any amendment or
supplement to the Registration Statement, (ii) any amendment or
supplement to any Prospectus or (iii) any Incorporated Document in
any of the foregoing or any amendment of or supplement to any such
Incorporated Document, to furnish a copy thereof to the Agents and
counsel to the Agents.
(f) Notice to Agents of Certain Events. To comply with all
requirements imposed by the Act necessary for the distribution of
the Notes as contemplated by the provisions hereof and by the
Prospectus and to make the requisite filings with the Commission
pursuant to Rule 430A and to advise the Agents immediately (i) of
such filings or when any post-effective amendment thereto becomes
effective, (ii) of any request by the Commission for an amendment
to the Registration Statement, a supplement to the Prospectus, an
amendment to any documents incorporated by reference in the
Prospectus, any Incorporated Document or any amendment thereto or
for any additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or any order directed to any document
incorporated by reference in the Prospectus or any Incorporated
Document, or of the initiation or threat of any stop-order
proceeding or of any challenge to the accuracy or adequacy of any
document incorporated by reference in the Prospectus or any
Incorporated Document, (iv) of receipt by the Company of any
notification with respect to the suspension of the qualification of
the Notes for sale in any jurisdiction or the initiation or threat
of any proceeding for that purpose, and (v) of the happening of any
event prior to the termination of the offering of the Notes that
makes untrue any statement of a material fact made in the
Registration Statement or the Prospectus or that may require the
making of a change in the Registration Statement or the Prospectus
in order to make any material statement therein not misleading.
(g) Exchange Act Filings. Until the termination of the
offering of the Notes, to timely file all documents, and any
amendments to previously filed documents, required to be filed by
it pursuant to Sections 12, 13, 14 or 15(d) of the Exchange Act.
(h) Holdback. During the period beginning from the date of
a Purchase Agreement and continuing to and including the date of
delivery of the Notes with respect thereto, not to announce an
offer for sale, make an offer for sale, sell or otherwise dispose
of any debt securities of the Company which have terms
substantially similar to the terms of the Notes, without the
consent of the Agents.
(i) Price Manipulation. The Company will not take, directly
or indirectly, any action which is designed to cause or result in,
or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the Notes to
facilitate the sale or resale of the Notes.
(j) Stop Orders. If, during any Marketing Period, the
Commission shall issue a stop order suspending the effectiveness of
the Registration Statement, to make every reasonable effort to
obtain the lifting of that order at the earliest possible time.
(k) Earnings Statements. As soon as practicable, but not
later than 18 months, after the date of each acceptance by the
Company of an offer to purchase Notes hereunder, to make generally
available to its security holders an earnings statement covering a
period of at least 12 months beginning after the later of (i) the
effective date of the Registration Statement, (ii) the effective
date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of
such acceptance and (iii) the date of the Company's most recent
Annual Report on Form 10-K filed with the Commission prior to the
date of such acceptance which will satisfy the provisions of
Section 11(a) of the Act (including, at the option of the Company,
Rule 158 of the Rules and Regulations under the Act).
(l) Copies of Reports, Releases and Financial Statements. So
long as any of the Notes are outstanding, to furnish to the Agents,
not later than the time the Company makes the same available to
others, copies of all public reports or releases and all reports
and financial statements furnished by the Company to any securities
exchange on which the Notes are listed pursuant to requirements of
or agreements with such exchange or to the Commission pursuant to
the Exchange Act or any rule or regulation of the Commission
thereunder.
(m) Blue Sky Qualifications. To endeavor, in cooperation
with the Agents, to qualify the Notes for offering and sale under
the securities laws of such jurisdiction as the Agents may
designate, and to maintain such qualifications in effect for as
long as may be required for the distribution of the Notes; and to
file such statements and reports as may be required by the laws of
each jurisdiction in which the Notes have been qualified as above
provided.
(n) Pricing Supplement. To prepare, with respect to any
Notes to be sold through or to the Agents pursuant to this
Agreement, a Pricing Supplement with respect to such Notes in a
form previously approved by the Agents and to file such Pricing
Supplement pursuant to Rule 424 under the Act with the Commission.
SECTION 4. PAYMENT OF EXPENSES
The Company will pay:
(i) the costs incident to the authorization,
issuance, sale and delivery of the Notes and any taxes payable
in that connection,
(ii) the costs incident to the preparation, printing
and filing under the Act of the Registration Statement and any
amendments and exhibits thereto,
(iii) the costs incident to the preparation, printing
and filing of any document and any amendments and exhibits
thereto required to be filed by the Company under the Exchange
Act,
(iv) the costs of distributing the Registration
Statement, as originally filed, and each amendment and post-
effective amendment thereof (including exhibits), each
Prospectus, any supplement or amendment to any Prospectus and
any documents incorporated by reference in any of the
foregoing documents,
(v) the fees and disbursements of the Trustee, any
paying agent, any calculation agent, any exchange rate agent
and any other agents appointed by the Company, and their
respective counsel,
(vi) the costs and fees in connection with the
listing of the Notes on any securities exchange,
(vii) the costs and fees in connection with any
filings with the National Association of Securities Dealers
Inc.,
(viii) the fees and disbursements of counsel to
the Company and counsel to the Agents,
(ix) the fees paid to rating agencies in connection
with the rating of the Notes,
(x) the fees and expenses of qualifying the Notes
under the securities laws of the several jurisdictions as
provided in Section 3(j) hereof and of preparing and printing
a Blue Sky Memorandum and a memorandum concerning the legality
of the Notes as an investment (including fees and expenses of
counsel for the Agents in connection therewith),
(xi) all advertising expenses in connection with the
offering of the Notes incurred with the consent of the
Company, and
(xii) all other costs and expenses arising out
of the transactions contemplated hereunder and incident to the
performance of the Company's obligations under this Agreement
or otherwise in connection with the activities of the Agents
under this Agreement.
SECTION 5. CONDITIONS OF OBLIGATIONS OF AGENTS
The obligation of the Agents, as the agents of the Company,
under this Agreement to solicit offers to purchase the Notes, the
obligation of any person who has agreed to purchase Notes to make
payment for and take delivery of Notes, and the obligation of the
any Agent to purchase Notes pursuant to any Purchase Agreement, is
subject to the accuracy, on each Representation Date, of the
representations and warranties of the Company contained herein, to
the accuracy of the statements of the Company's officers made in
any certificate furnished pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder, and to
each of the following additional terms and conditions:
(a) Registration Statement. The Prospectus as amended or
supplemented (including the Pricing Supplement) with respect to
such Notes shall have been filed with the Commission pursuant to
Rule 424(b) under the Act within the applicable time period
prescribed for such filing by the Rules and Regulations and in
accordance with Section 3(l) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof nor
any order directed to any document incorporated by reference in any
Prospectus shall have been issued and no stop order proceeding
shall have been initiated or threatened by the Commission and no
challenge shall have been made to the accuracy or adequacy of any
document incorporated by reference in any Prospectus; any request
of the Commission for inclusion of additional information in the
Registration Statement or any Prospectus or otherwise shall have
been complied with; and the Company shall not have filed with the
Commission any amendment or supplement to the Registration
Statement or any Prospectus (or any document incorporated by
reference therein) without first allowing the Agents and their
counsel reasonable opportunity to comment thereon.
(b) No Suspension of Sale of the Notes. No order suspending
the sale of the Notes in any jurisdiction designated by the Agents
pursuant to Section 3(m) hereof shall have been issued, and no
proceeding for that purpose shall have been initiated or
threatened.
(c) No Material Omissions or Untrue Statements. The Agents
shall have not have discovered and disclosed to the Company that
the Registration Statement or any Prospectus contains an untrue
statement of a fact which, in the opinion of counsel for the
Agents, is material or omits to state a fact which, in the opinion
of such counsel, is material and is required to be stated therein
or is necessary to make the statements therein not misleading.
(d) Legal Matters Satisfactory to Counsel. All corporate
proceedings and other legal matters incident to the authorization,
form and validity of this Agreement, the Notes, the Indenture, the
form of the Registration Statement, any amendments thereto, each
Prospectus, any supplements thereto (other than financial
statements and other financial data) and all other legal matters
relating to this Agreement and the transactions contemplated hereby
shall be satisfactory in all respects to counsel for the Agents and
the Company shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass
upon such matters.
(e) Opinion of Company Counsel. At the Closing Date, the
Agents shall have received the opinion, addressed to the Agents and
dated the Closing Date, of the General Counsel of the Company, in
form and substance satisfactory to the Agents and their counsel, to
the effect that:
(i) Each of the Company, Chicago Bridge & Iron
Company ("Chicago Bridge") and LC Industries, Inc. ("Liquid
Carbonic"), Chicago Bridge and Liquid Carbonic being wholly
owned subsidiaries of the Company, has been duly incorporated
and is validly existing in good standing as a corporation
under the laws of Delaware, Illinois and Delaware,
respectively, and each is duly qualified to do business and in
good standing in each of the other United States jurisdictions
where such qualification is required for the conduct of its
business or ownership of its properties and where the failure
to be so qualified could reasonably be expected to have a
material adverse effect upon the Company and its subsidiaries
taken as a whole;
(ii) The Notes have been duly authorized and, when
issued, authenticated and delivered pursuant to the Indenture
against payment of the agreed upon consideration therefor
pursuant to this Agreement, such Notes will have been duly
executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture,
which is in the form filed as an exhibit to the Registration
Statement, and will be enforceable in accordance with their
terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or other similar laws
affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles
of equity; the Indenture has been duly authorized and is duly
qualified under the Trust Indenture Act and constitutes a
valid and legally binding obligation of the Company,
enforceable in accordance with its terms as modified by
applicable law, except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization or other similar
laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles
of equity; and the Indenture conforms and the Notes, when
issued, will conform to the description thereof contained in
the Registration Statement and the Prospectus;
(iii) The Registration Statement and any
amendments thereto and Prospectus and any supplements thereto
comply as to form in all material respects with the
requirements of the Act and the Rules and Regulations
thereunder, and the documents incorporated (or deemed to be
incorporated) by reference in the Prospectus and the
Incorporated Documents (if any) when filed with the Commission
appear on their face to have been appropriately responsive to
the requirements of the Exchange Act and the Rules and
Regulations thereunder, except that no opinion need be
expressed as to the financial statements, schedules and other
financial data contained in any of those documents;
(iv) Such counsel has no reason to believe that the
Registration Statement (except as to the financial statements,
schedules and other financial data contained or incorporated
by reference therein, as to which such counsel need express no
opinion) at the time it became effective or the Prospectus or
any amendments or supplements thereto contain any untrue
statement of a material fact or omits to state any material
fact required to be stated therein or necessary in order to
make the statements made therein, in light of the
circumstances under which they were made, not misleading;
(v) The Registration Statement has become effective
under the Act and, to the best of such counsel's knowledge, no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for such purpose
have been instituted or are pending or threatened;
(vi) To the best of such counsel's knowledge,
neither the Company nor any of its subsidiaries has any
litigation or governmental, administrative or other
proceeding, pending or threatened, which are not disclosed in
the Prospectus and which are of a character that ought to be
disclosed in the Prospectus;
(vii) To the best of such counsel's knowledge,
there are no contracts to which the Company or any of its
subsidiaries is a party which are required to be filed as
exhibits to the Registration Statement and are not so filed or
required to be summarized therein and are not so summarized;
(viii) The statements made in the Prospectus
under the caption "Description of the Notes," insofar as they
purport to summarize the provisions of documents or agreements
specifically referred to therein, fairly present the
information called for with respect thereto by Form S-3;
(ix) Neither the Company, Chicago Bridge or Liquid
Carbonic is in violation of its certificate of incorporation
or by-laws, or, to the best of such counsel's knowledge, in
default under any material agreement, indenture or instrument;
and
(x) This Agreement has been duly authorized,
executed and delivered by the Company; the execution, delivery
and performance of this Agreement will not conflict with, or
result in the creation or imposition of any lien, charge or
encumbrance upon any of the assets of the Company or any of
its subsidiaries (which creation or imposition would have a
material adverse effect on the Company and its subsidiaries
taken as a whole) pursuant to the terms of, or constitute a
breach or default under, any agreement, indenture or
instrument known to such counsel, or result in a material
violation of the certificate of incorporation or by-laws of
the Company or any of its subsidiaries or, to the best of such
counsel's knowledge, any order, rule or regulation of any
court or governmental agency having jurisdiction over the
Company, any of its subsidiaries or their property; and no
consent, authorization or order of, or filing or registration
with, any court or governmental agency is required for the
execution, delivery and performance of this Agreement by the
Company, except such as may be required by the Act, the
Exchange Act, the Trust Indenture Act and state securities
laws.
(f) Officers' Certificate. The Company shall have furnished
to the Agents on the Closing Date a certificate, dated the Closing
Date, of its President and its Executive Vice President-Finance and
Chief Financial Officer, certifying that:
(i) There are no legal or governmental
administrative or other proceedings pending or threatened
against the Company or its subsidiaries of a character
required to be disclosed in the Prospectus which are not
disclosed therein;
(ii) The representations and warranties of the
Company contained herein are true and correct as of the
Closing Date; that the Company has complied with all of its
agreements herein contained; and that the conditions set forth
in subparagraphs (a), (b), (d), (e), (g), (h), (i) and (j) of
this Section 5 have been fulfilled;
(iii) Since the date of the latest audited
financial statements of the Company included in the
Prospectus, there have been no material transactions not in
the ordinary course of business entered into by the Company or
its subsidiaries not reflected in the Registration Statement,
as amended, or Prospectus, as supplemented, and since the date
of the latest audited financial statements of the Company
included in the Prospectus, there have been no material
adverse changes in the financial condition of the Company and
its subsidiaries taken as a whole or in their consolidated
financial position or net assets as shown in the Registration
Statement and Prospectus other than as referred to or
contemplated in the Registration Statement and the Prospectus;
and
(iv) They have carefully examined the Registration
Statement, the Prospectus and the documents incorporated
therein and (A) as of the effective date of the Registration
Statement, the Registration Statement, the Prospectus and such
incorporated documents did not include any untrue statement of
a material fact and did not omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, and (B) since the effective
date of the Registration Statement, no event has occurred that
should have been set forth in a supplement to or an amendment
of the Prospectus or in an Incorporated Document that has not
been set forth in such a supplement or amendment or in an
Incorporated Document.
(g) Accountant's Letter. The Company shall have furnished to
the Agents on the Closing Date, a letter from Arthur Andersen &
Co., addressed jointly to the Company and the Agents and dated the
Closing Date, of the type described in the American Institute of
Certified Public Accountants' Statement on Auditing Standards
("SAS") No. 72, in form and substance reasonably satisfactory to
the Agents confirming that they are independent accountants within
the meaning of the Act and the applicable published Rules and
Regulations thereunder and stating in effect that:
(i) They are independent public accountants with respect
to the Company and its subsidiaries within the meaning of the
Act and applicable published Rules and Regulations;
(ii) In their opinion, the financial statements and
schedules audited by them and included or incorporated by
reference in the Prospectus contained in the Registration
Statement comply in form in all material respects with the
applicable accounting requirements of the Act and the related
published Rules and Regulations;
(iii) They have made a review of any unaudited interim
financial information included in the Prospectus in accordance
with standards specified by the American Institute of
Certified Public Accountants for a review of interim financial
information as described in SAS No. 71, Interim Financial
Information, on the unaudited condensed financial statements
as indicated in their report or reports attached to such
letter;
(iv) On the basis of the review referred to in (ii) above
and a reading of the latest available interim financial
statements of the Company, inquiries of officials of the
Company who have responsibility for financial and accounting
matters and other specified procedures, nothing came to their
attention that caused them to believe that:
(A) any material modifications should be made to
the unaudited financial statements included or
incorporated by reference in the Prospectus for them to
be in conformity with generally accepted accounting
principles;
(B) the unaudited financial statements, if any,
included in the Prospectus do not comply in form in all
material respects with the applicable accounting
requirements of the Act and the related published Rules
and Regulations;
(C) the unaudited capsule information, if any,
included in the Prospectus does not agree with the
amounts set forth in the unaudited consolidated financial
statements from which it was derived or was not
determined on a basis substantially consistent with that
of the audited financial statements included or
incorporated by reference in the Prospectus;
(D) at the date of the latest available balance
sheet read by such accountants, or at a subsequent
specified date not more than five days prior to the
Closing Date, there was any change in the capital stock,
any increase in short-term indebtedness or long-term debt
of the Company and consolidated subsidiaries or, at the
date of the latest available balance sheet read by such
accountants, there was any decrease in consolidated net
current assets or net assets as compared with amounts
shown on the latest balance sheet included in the
Prospectus; or
(E) for the period from the date of the latest
income statement included in the Prospectus to the
closing date of the latest available income statement
read by such accountants there were any decreases, as
compared with the corresponding period of the previous
year, in consolidated net sales, total or per share
income, income before extraordinary items or net income,
or in the ratio of earnings to fixed charges;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(v) They have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Prospectus (in each
case to the extent that such dollar amounts, percentages and
other financial information are derived from the general
accounting records of the Company and its subsidiaries subject
to the internal controls of the Company's accounting system or
are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a
reading of such general accounting records and other
procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in
such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed
included in the Prospectus for purposes of this subsection.
(h) Opinion of Agents' Counsel. The Agents shall have
received from Mayer, Brown & Platt, counsel to the Agents, such
opinion or opinions, dated the Closing Date, with respect to the
issuance and sale of the Notes, the Indenture, the Registration
Statement (including the description contained therein under the
heading "Certain United States Federal Income Tax Consequences"),
the Prospectus and other related matters as the Agents may
reasonably require, and the Company shall have furnished to such
counsel such documents as they may request for the purpose of
enabling them to pass upon such matters.
(i) Additional Conditions. There shall not have occurred:
(i) any change in the capital stock or long-term debt of the
Company or any of its Subsidiaries or any change, or any
development involving a prospective change, in or affecting the
general affairs, management, stockholders' equity, business,
properties, condition (financial or other), results of operations
or prospects of the Company which, in the opinion of the Agents,
materially impairs the investment quality of the Notes; (ii) a
suspension or material limitation in trading in securities
generally on the New York Stock Exchange, the American Stock
Exchange or the over-the-counter market or the establishment of
minimum prices on such exchanges or such market by the Commission,
by such exchange or by any other regulatory body or governmental
authority having jurisdiction; (iii) a general moratorium on
commercial banking activities declared by Federal, Illinois or New
York State authorities; (iv) any downgrading in the rating accorded
the Company's debt securities by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any
debt securities of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication
of a possible downgrading, of such rating); (v) any outbreak or
escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other
substantial national calamity or emergency; or (vi) any material
adverse change in the existing financial, political or economic
conditions of the United States, including any effect of
international conditions on the financial markets in the United
States, that in the judgment of the Agents makes it impracticable
or inadvisable to proceed with the solicitation of offers to
purchase Notes or the purchase of Notes from the Company as
principal pursuant to the applicable Purchase Agreement, as the
case may be.
(j) Other Information and Documentation. Prior to the
Closing Date, the Company shall have furnished to the Agents such
further information, certificates and documents as the Agents or
counsel to the Agents may reasonably request.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in
compliance with the provisions hereof only if they are in the form
and substance satisfactory to counsel for the Agents.
SECTION 6. ADDITIONAL COVENANTS OF THE COMPANY
The Company covenants and agrees that:
(a) Acceptance of Offer Affirms Representations and
Warranties. Each acceptance by it of an offer for the purchase of
Notes shall be deemed to be an affirmation that the representations
and warranties of the Company contained in this Agreement and in
the most recent certificate theretofore given to the Agents
pursuant hereto are true and correct at the time of such
acceptance, and an undertaking that such representations and
warranties will be true and correct at the time of delivery to the
purchaser or his agent of the Notes relating to such acceptance as
though made at and as of each such time (and such representations
and warranties shall relate to the Registration Statement and the
Prospectus as amended or supplemented to each such time).
(b) Subsequent Delivery of Officers' Certificates. The
Company agrees that during each Marketing Period, each time that
the Registration Statement or any Prospectus shall be amended or
supplemented (other than by a Pricing Supplement providing solely
for the interest rates or maturities of the Notes or the principal
amount of Notes remaining to be sold or similar changes), each time
the Company sells Notes to an Agent as principal and the applicable
Purchase Agreement specifies the delivery of an officers'
certificate under this Section 6(b) as a condition to the purchase
of Notes pursuant to such Purchase Agreement or the Company files
with the Commission any document incorporated by reference into any
Prospectus, the Company shall submit to the Agents a certificate,
(i) as of the date of such amendment, supplement, Time of Delivery
relating to such sale or filing or (ii) if such amendment,
supplement or filing was not filed during a Marketing Period, as of
the first day of the next succeeding Marketing Period, representing
that the statements contained in the certificate referred to in
Section 5(f) hereof which was last furnished to the Agents are true
and correct at the time of such amendment, supplement or filing, as
the case may be, as though made at and as of such time (except that
such statements shall be deemed to relate to the Registration
Statement and each Prospectus as amended and supplemented to such
time).
(c) Subsequent Delivery of Legal Opinions. The Company
agrees that during each Marketing Period, each time that the
Registration Statement or any Prospectus shall be amended or
supplemented (other than by a Pricing Supplement providing solely
for the interest rates or maturities of the Notes or the principal
amount of Notes remaining to be sold or similar changes), each time
the Company sells Notes to an Agent as principal and the applicable
Purchase Agreement specifies the delivery of a legal opinion under
this Section 6(c) as a condition to the purchase of Notes pursuant
to such Purchase Agreement or the Company files with the Commission
any document incorporated by reference into any Prospectus, the
Company shall, (i) concurrently with such amendment, supplement,
Time of Delivery relating to such sale or filing or (ii) if such
amendment, supplement or filing was not filed during a Marketing
Period, on the first day of the next succeeding Marketing Period,
furnish the Agents and their counsel with the written opinion of
the General Counsel of the Company, addressed to the Agents and
dated the date of delivery of such opinion, in form satisfactory to
the Agents, of the same effect as the opinion referred to in
Section 5(e) hereof, but modified, as necessary, to relate to the
Registration Statement and each Prospectus as amended or
supplemented to the time of delivery of such opinion; provided,
however, that in lieu of such opinion, such counsel may furnish the
Agents with a letter to the effect that the Agents may rely on such
prior opinion to the same extent as though it was dated the date of
such letter authorizing reliance (except that statements in such
prior opinion shall be deemed to relate to the Registration
Statement and each Prospectus as amended or supplemented to the
time of delivery of such letter authorizing reliance).
(d) Subsequent Delivery of Accountant's Letters. The Company
agrees that during each Marketing Period, each time that the
Registration Statement or any Prospectus shall be amended or
supplemented to include additional financial information, each time
the Company sells Notes to an Agent as principal and the applicable
Purchase Agreement specifies the delivery of a letter under this
Section 6(d) as a condition to the purchase of Notes pursuant to
such Purchase Agreement or the Company files with the Commission
any document incorporated by reference into any Prospectus which
contains additional financial information, the Company shall cause
Arthur Andersen & Co. (or other independent accountants of the
Company acceptable to the Agents) to furnish the Agents, (i)
concurrently with such amendment, supplement, Time of Delivery
relating to such sale or filing or (ii) if such amendment,
supplement, or filing was not filed during a Marketing Period, on
the first day of the next succeeding Marketing Period, a letter,
addressed jointly to the Company and the Agents and dated the date
of delivery of such letter, in form and substance reasonably
satisfactory to the Agents, of the same effect as the letter
referred to in Section 5(g) hereof but modified to relate to the
Registration Statement and each Prospectus, as amended and
supplemented to the date of such letter, with such changes as may
be necessary to reflect changes in the financial statements and
other information derived from the accounting records of the
Company; provided, however, that if the Registration Statement or
any Prospectus is amended or supplemented solely to include
financial information as of and for a fiscal quarter, such
accountants may limit the scope of such letter to the unaudited
financial statements included in such amendment or supplement
unless there is contained therein any other accounting, financial
or statistical information that, in the reasonable judgment of the
Agents, should be covered by such letter, in which event such
letter shall also cover such other information.
(e) Opinion on Settlement Date. On any settlement date for
the sale of Notes, the Company shall, if requested by the Agent
that solicited or received the offer to purchase any Notes being
delivered on such settlement date, furnish such Agent with a
written opinion of the General Counsel of the Company, dated such
settlement date, in form satisfactory to such Agent, to the effect
set forth in Section 5(e) hereof, but modified, as necessary, to
relate to the Prospectus relating to the Notes to be delivered on
such settlement date; provided, however, that in lieu of such
opinion, such counsel may furnish the Agents with a letter to the
effect that the Agents may rely on such prior opinion to the same
extent as though it was dated such settlement date (except that
statements in such prior opinion shall be deemed to relate to the
Registration Statement and such Prospectus as amended or
supplemented to the time of delivery of such letter authorizing
reliance).
SECTION 7. INDEMNIFICATION AND CONTRIBUTION
(a) Indemnification of Agent. The Company shall indemnify
and hold harmless each Agent and each person, if any, who controls
any Agent within the meaning of the Act (a "controlling person")
from and against any loss, claim, damage or liability, joint or
several, and any action in respect thereof, to which such Agent or
controlling person may become subject, under the Act, the Exchange
Act or other federal or state statutory law or regulations, at
common law or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement of a material fact contained
in the Registration Statement or the Prospectus, or arises out of,
or is based upon, the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make
the statements therein not misleading, and shall reimburse each
Agent and controlling person for any legal and other expenses
reasonably incurred by such Agent or controlling person in
investigating or defending or preparing to defend against any such
loss, claim, damage, liability or action; provided, however, that
the Company shall not be liable in any such case to the extent that
any such loss, claim, damage, liability or action arises out of, or
is based upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in the Form T-1 or made in the
Registration Statement or the Prospectus in reliance upon and in
conformity with written information furnished to the Company by the
Agents specifically for inclusion therein; provided further, that
as to any prospectus included in the Registration Statement before
it became effective under the Act (a "Preliminary Prospectus") or
any preliminary prospectus supplement, this indemnity agreement
shall not inure to the benefit of any Agent on account of any loss,
claim, damage, liability or action arising from the sale of Notes
to any person by that Agent if that Agent failed to send or give a
copy of the Prospectus to that person within the time required by
the Act, and the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material
fact in such Preliminary Prospectus was corrected in the
Prospectus, unless such failure resulted from non-compliance by the
Company with Section 3(b). The foregoing indemnity agreement is in
addition to any liability which the Company may otherwise have to
any Agent or controlling person.
(b) Indemnification of the Company. Each Agent shall
indemnify and hold harmless the Company, each of its directors,
each of its officers who signed the Registration Statement and any
person who controls the Company within the meaning of the Act from
and against any loss, claim, damage or liability, joint or several,
and any action in respect thereof, to which the Company or any such
director, officer or controlling person may become subject, under
the Act, the Exchange Act or federal or state statutory law or
regulation, at common law or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon,
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus, or
arises out of, or is based upon, the omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but in
each case only to the extent that the untrue statement or alleged
untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished
to the Company by such Agent specifically for inclusion therein,
and shall reimburse the Company or any such director, officer or
controlling person for any legal and other expenses reasonably
incurred by such indemnified party in investigating or defending or
preparing to defend against any such loss, claim, damage, liability
or action. The foregoing indemnity agreement is in addition to any
liability which any Agent may otherwise have to the Company or any
of its directors, officers or controlling persons.
(c) Notice. Promptly after receipt by an indemnified party
under this Section of notice of any claim or the commencement of
any action, the indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under this
Section, notify the indemnifying party in writing of the claim or
the commencement of that action; provided, however, that the
failure to notify the indemnifying party shall not relieve it from
any liability which it may have to an indemnified party otherwise
than under this Section. If any such claim or action shall be
brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be
entitled to participate therein, and, to the extent that it wishes,
jointly with any other similarly notified indemnifying party, to
assume the defense thereon with counsel satisfactory to the
indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such
claim or action, the indemnifying party shall not be liable to the
indemnified party under this Section for any legal or other
expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that the Agents shall have the
right to employ counsel to represent the Agents who may be subject
to liability arising out of any claim in respect of which indemnity
may be sought by the Agents against the Company under this Section
if, in the reasonable judgment of the Agents, there may be legal
defenses available to the Agents which are different from or
additional to those available to the Company or that there exists
some conflict of interest between the interest of the Agents and
the Company with respect to such claim that makes separate
representation desirable in the reasonable judgment of the Agents,
and in the event of the foregoing the reasonable fees and expenses
of such separate counsel shall be paid by the Company. It is
understood, however, in connection with the Company's undertaking
in the preceding proviso, that the Company shall not be liable for
the expenses of more than one separate counsel representing the
Agents or their respective controlling persons who are parties to
the claim referred to in such proviso. The indemnifying party
shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and against any loss
or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel,
the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 60 days after
receipt by such indemnifying party of the aforesaid request and
(ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date
of such settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of
any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of
such proceeding.
(d) Contribution. If the indemnification provided for in
this Section 7 shall for any reason be unavailable to an
indemnified party under Section 7(a) or 7(b) hereof in respect of
any loss, claim, damage or liability, or any action in respect
thereof, referred to therein, then each indemnifying party shall,
in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of
such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect
the relative benefits received by the Company on the one hand and
any Agent on the other from the offering of the Notes or (ii) if
the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also
the relative fault of the Company on the one hand and any Agent on
the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company on
the one hand and any Agent on the other with respect to such
offering shall be deemed to be in the same proportion as the total
net proceeds from the offering of the Notes (before deducting
expenses) received by the Company bears to the total commissions
received by such Agent with respect to such offering. The relative
fault shall be determined by reference to whether the untrue or
alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied
by the Company or any Agent, the intent of the parties and their
relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the
Agents agree that it would not be just and equitable if
contributions pursuant to this Section 7(d) were to be determined
by pro rata allocation (even if the Agents were treated as one
entity for such purpose) or by any other method of allocation which
does not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in
respect thereof, referred to above in this Section 7(d) shall be
deemed to include, for purposes of this Section 7(d), any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of the Section 7(d), no
Agent shall be required to contribute any amount in excess of the
amount by which the total price at which the Notes sold through
such Agent and distributed to the public were offered to the public
exceeds the amount of any damages which such Agent has otherwise
paid or become liable to pay by reason of any untrue or alleged
untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
SECTION 8. STATUS OF EACH AGENT
In soliciting offers to purchase the Notes from the Company
pursuant to this Agreement (other than in respect of any Purchase
Agreement), each Agent is acting individually and not jointly and
is acting solely as agent for the Company and not as principal.
Each Agent will make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase
Notes from the Company has been solicited by such Agent and
accepted by the Company but such Agent shall have no liability to
the Company in the event any such purchase is not consummated for
any reason. If the Company shall default in its obligations to
deliver Notes to a purchaser whose offer it has accepted, the
Company shall (i) hold the Agents harmless against any loss, claim
or damage arising from or as a result of such default by the
Company and (ii), in particular, pay to the Agents any commission
to which they would be entitled in connection with such sale.
SECTION 9. REPRESENTATIONS, WARRANTIES AND OBLIGATIONS TO
SURVIVE DELIVERY
The respective indemnities, agreements, representations,
warranties and other statements of the Company and the Agents
contained in this Agreement, or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain operative
and in full force and effect, regardless of any investigation made
by or on behalf of any Agent or any person controlling such Agent
or by or on behalf of the Company, and shall survive each delivery
of any payment for any of the Notes.
SECTION 10. TERMINATION
This Agreement may be terminated for any reason with respect
to any party hereto, at any time, by any party hereto upon the
giving of one day's written notice of such termination to the other
parties thereto provided, however, if such terminating party is an
Agent, such termination shall be effective only with respect to
such terminating party. If, at the time of a termination, an offer
to purchase any of the Notes has been accepted by the Company but
the time of delivery to the purchaser has not occurred, the
provisions of this Agreement shall remain in effect until such
Notes are delivered. The provisions of Sections 2(c), 3(d), 3(h),
3(i), 4, 7, 8 and 9 hereof shall survive any termination of this
Agreement.
SECTION 11. SALES OF NOTES DENOMINATED IN A FOREIGN
CURRENCY AND INDEXED NOTES
If at any time the Company and any of the Agents shall
determine to issue and sell Notes denominated in a currency or
currency unit other than U.S. Dollars, which other currency may
include a composite currency, or with respect to which an index is
used to determine the amounts of payments of principal and any
premium or interest, the Company and such Agent shall execute and
deliver an Amendment (a "Foreign Currency Amendment" or "Indexed
Note Amendment," as the case may be) in the form attached hereto as
Exhibit D. Such amendment shall establish, as appropriate
additions and modifications that shall apply to the sales, whether
offered on an agency or principal basis, of the Notes covered
thereby. The Agents are authorized to solicit offers to purchase
Notes with respect to which an index is used to determine the
amounts of payments of principal and any premium and interest, and
the Company shall agree to any sales of such Notes (whether offered
on any agency or principal basis), only in a minimum aggregate
amount of $2,500,000.
SECTION 12. NOTICES
Except as otherwise provided herein, all notices and other
communications hereunder shall be in writing and shall be deemed to
have been duly given if mailed or transmitted by any standard form
of telecommunication. Notices to the Agents shall be directed to
it as follows: Lehman Brothers, 3 World Financial Center, 12th
Floor, New York, New York 10285-1200, Attention: Medium Term Note
Department, Roger A. Blissett, Telephone No.: (212) 298-2040;
Telecopy No.: (212) 528-1718; Merrill Lynch & Co., World Financial
Center, North Tower, 10th Floor, New York, New York 10281-1310,
Attention: MTN Product Management, Telephone No.: (212) 449-7474;
Telecopy No.: (212) 449-2234; Salomon Brothers Inc, Seven World
Trade Center, 31st Floor, New York, New York 10048, Attention:
Medium Term Note Group, Telephone No.: (212) 783-5897; Telecopy
No.: (212) 783-2274; notices to the Company shall be directed to it
as follows: 800 Jorie Boulevard, Oak Brook, Illinois 60521-2268,
Attention: Vice President and Treasurer.
SECTION 13. BINDING EFFECT; BENEFITS
This Agreement shall be binding upon each Agent, the Company,
and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons,
except that (a) the representations, warranties, indemnities and
agreements of the Company contained in this Agreement shall also be
deemed to be for the benefit of the person or persons, if any, who
control any Agent within the meaning of Section 15 of the Act, and
(b) the indemnity agreement of the Agents contained in Section 7
hereof shall be deemed to be for the benefit of directors of the
Company, officers of the Company who have signed the Registration
Statement and any person controlling the Company. Nothing in this
Agreement is intended or shall be construed to give any person,
other than the person referred to in this Section, any legal or
equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
SECTION 14. GOVERNING LAW; COUNTERPARTS
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, except for the
laws of such state with respect to the conflicts of law doctrine.
This Agreement may be executed in counterparts and the executed
counterparts shall together constitute a single instrument.
SECTION 15. PARAGRAPH HEADINGS
The paragraph headings used in this Distribution Agreement are
for convenience of reference only, and are not to affect the
construction hereof or be taken into consideration in the
interpretation hereof.
<PAGE>
If the foregoing correctly sets forth our agreement, please
indicate your acceptance hereof in the space provided for that
purpose below.
Very truly yours,
CBI INDUSTRIES, INC.
By: /S/ G.L. Schueppert
Title: Executive Vice President-Finance
CONFIRMED AND ACCEPTED,
as of the date first above written:
LEHMAN BROTHERS INC.
By: /S/ Robert S. Karlblom
Title: Managing Director
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /S/ Thomas R. Williams
Title: Director
SALOMON BROTHERS INC
By: /S/ Anne Clarke Wolff
Title: Vice President
<PAGE>
<PAGE>
EXHIBIT A
CBI INDUSTRIES, INC.
MEDIUM-TERM NOTES, SERIES A
SCHEDULE OF PAYMENTS
The Company agrees to pay each Agent a commission equal to the
following percentages of the aggregate U.S. dollar equivalent of
the principal amount of Notes:
TERM COMMISSION RATE
9 months to less than 12 months .125%
12 months to less than 18 months .150%
18 months to less than 2 years .200%
2 years to less than 3 years .250%
3 years to less than 4 years .350%
4 years to less than 5 years .450%
5 years to less than 6 years .500%
6 years to less than 7 years .550%
7 years to less than 10 years .600%
10 years to less than 15 years .625%
15 years to less than 20 years .675%
20 years to 30 years .750%
More than 30 years */
*/ In the case of maturities in excess of 30 years, commissions
and discount will be agreed upon by the Company and the relevant
Agent at the time of sale.
<PAGE>
<PAGE>
EXHIBIT B
CBI INDUSTRIES, INC.
MEDIUM-TERM NOTES, SERIES A
ADMINISTRATIVE PROCEDURES
Medium-Term Notes, Series A, due nine months or more from date
of issue (the "Notes") are to be offered on a continuing basis by
CBI Industries, Inc. (the "Company"). Lehman Brothers Inc.,
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Salomon Brothers Inc, as agents (each an "Agent"
and collectively, the "Agents"), which shall include Lehman Special
Securities Inc., an affiliate of Lehman Brothers Inc., have each
agreed to use their reasonable best efforts to solicit offers to
purchase the Notes. The Notes are being sold pursuant to a
Distribution Agreement between the Company and the Agents dated
____________________________ ___, 1994 (as it may be supplemented
or amended from time to time, the "Distribution Agreement") to
which these administrative procedures are attached as an exhibit.
The Notes will be issued under the Company's Indenture, dated as of
March 1, 1994, between the Company and Chemical Bank, as trustee
(the "Trustee"), as heretofore supplemented. The Notes will rank
equally with all other unsecured and unsubordinated indebtedness of
the Company and will have been registered with the Securities and
Exchange Commission (the "Commission"). Terms defined in the
Prospectus relating to the Notes (the "Prospectus", which term
shall include any Prospectus Supplement relating to the Notes and
any Pricing Supplement relating to an applicable Note) and in the
Distribution Agreement shall have the same meaning when used in
this exhibit.
The Notes will be issued either (a) in certificated form
(each, a "Certificated Note") delivered to the purchaser thereof or
a person designated by such purchaser or (b) in book-entry form
(each, a "Book-Entry Note") represented by one or more fully
registered global Notes (each, a "Global Security") delivered to
the Trustee, as agent for the Depositary Trust Company ("DTC"), and
recorded in the book-entry system maintained by DTC. Owners of
beneficial interests in Book-Entry Notes will be entitled to
physical delivery of Certificated Notes equal in principal amount
to their respective beneficial interests only upon certain limited
circumstances described in the Prospectus.
General procedures relating to the issuance of all Notes are
set forth in Part I hereof. Certificated Notes will be issued in
accordance with the procedures set forth in Part II, as
supplemented, in the case of Certificated Notes denominated other
than in U.S. dollars ("Multi-Currency Notes"), by Part III. Book-
Entry Notes will be issued in accordance with the procedures set
forth in Part IV.
Administrative responsibilities, document control and record-
keeping functions to be performed by the Company will be performed
by its Vice President and Treasurer. Administrative procedures for
the offering are explained below.
PART I: PROCEDURES OF GENERAL APPLICABILITY
PRICE TO PUBLIC
Each Note will be issued at 100% of principal amount, unless
otherwise determined by the Company.
DATE OF ISSUANCE
Each Note will be dated and issued as of the date of its
authentication by the Trustee.
MATURITIES
Each Note will mature on a day at least nine months or more
from the date of issuance selected by the purchaser and agreed upon
by the Company. Each Floating Rate Note (as defined below) will
mature on an Interest Payment Date (as defined below).
REGISTRATION
Notes will be issued only in fully registered form as either
a Book-Entry Note or a Certificated Note.
INTEREST PAYMENTS
Each Note bearing interest at a fixed rate (a "Fixed Rate
Note") will bear interest from its issue date at the annual rate
stated on the face thereof, payable in the case of Fixed Rate Notes
other than Amortizing Notes (as defined below), unless otherwise
specified in an applicable Pricing Supplement, on June 15 and
December 15 of each year (each an "Interest Payment Date" with
respect to such Fixed Rate Note) and at Stated Maturity or upon
redemption, if applicable.
Special provisions are set forth in the Prospectus relating to
Notes bearing interest at a rate or rates determined by reference
to an interest rate formula ("Floating Rate Notes") at a rate
determined pursuant to the formula stated on the face thereof,
payable in arrears on such dates as are specified therein (each an
"Interest Payment Date" with respect to such Floating Rate Note).
Unless otherwise specified in an applicable Pricing
Supplement, interest on Fixed Rate Notes will be calculated and
paid on the basis of a 360-day year of twelve 30-day months.
Unless otherwise specified in an applicable Pricing Supplement,
interest will be payable to the person in whose name such Note is
registered at the close of business on May 31 or November 30
(whether or not a Business Day) with respect to Fixed Rate Notes
other than Amortizing Notes or the fifteenth day (whether or not a
Business Day) next preceding an Interest Payment Date with respect
to Floating Rate Notes (the "Record Dates") next preceding the
respective Interest Payment Date; provided, however, that interest
payable at Stated Maturity will be payable to the person to whom
principal shall be payable. Payments of principal and interest on
Notes for which payments of principal and interest are made in
equal installments over the life of the security ("Amortizing
Notes"), will be made either quarterly on each March 15, June 15,
September 15 and December 15 or semiannually on each June 15 and
December 15 as set forth in the applicable Pricing Supplement, and
at maturity or upon earlier redemption or repayment. Such payments
will be payable to the person in whose name such Amortizing Note is
registered at the close of business on the fifteenth day (whether
or not a Business Day) next preceding the respective Interest
Payment Date. Payments with respect to Amortizing Notes will be
applied first to interest due and payable thereon and then to the
reduction of the unpaid principal amount thereof. A table setting
forth repayment information in respect of each Amortizing Note will
be provided to the original purchaser and will be available, upon
request, to subsequent Holders. Any payment of principal and
interest on any such Note required to be paid on an Interest
Payment Date or at Stated Maturity or upon redemption, if
applicable, which is not a Business Day shall be postponed to the
next day which is a Business Day. The first payment of interest on
any Note originally issued between a Record Date and an Interest
Payment Date will be made on the Interest Payment Date following
the next succeeding Record Date. All interest payments (and, in
the case of Amortizing Notes, principal payments) excluding
interest payments and, in the case of Amortizing Notes, principal
payments made at Stated Maturity or upon redemption, if applicable,
will be made by check mailed to the person entitled thereto as
provided above, or, at the option of the Company, by wire transfer
to an account maintained by such person with a bank located in the
United States. Notwithstanding the foregoing, the holder of $10
million or more in aggregate principal amount of Notes of like
tenor and terms with the same Interest Payment Date may request
payment by wire transfers.
On the fifth Business Day immediately preceding each Interest
Payment Date, the Trustee will furnish the Company with the total
amount of the interest payments and, in the case of Amortizing
Notes, principal payments, to be made on such Interest Payment
Date. The Trustee (or any duly selected paying agent) will provide
monthly to the Company's Treasury Department a list of the
principal and interest to be paid on Notes maturing in the next
succeeding month. The Company will provide to the Trustee not
later than the payment date sufficient moneys to pay in full all
principal and interest payments due on such payment date. The
Trustee will assume responsibility for withholding taxes on
interest paid as required by law.
ACCEPTANCE AND REJECTION OF OFFERS
The Company shall have the sole right to accept offers to
purchase Notes and may reject any such offer to purchase Notes in
whole or in part. Each Agent shall promptly communicate to the
Company, orally or in writing, each reasonable offer to purchase
Notes from the Company received by it other than those rejected by
such Agent. Each Agent shall have the right, in its discretion
reasonably exercised without advising the Company, to reject any
offers in whole or in part.
SETTLEMENT
The receipt of immediately available funds in U.S. dollars by
the Company in payment for a Note (less the applicable commission)
and the authentication and issuance of such Note shall, with
respect to such Note, constitute "Settlement." All offers accepted
by the Company will be settled from one to five Business Days from
the date of acceptance by the Company pursuant to the timetable for
Settlement set forth below unless the Company and the purchaser
agree to Settlement on a later date; provided, however, that the
Company will so notify the Trustee of any such later date on or
before the Business Day immediately prior to the Settlement date.
PROCEDURES FOR ESTABLISHING THE TERMS OF THE NOTES
The Company and the Agents will discuss from time to time the
rates to be borne by the Notes that may be sold as a result of the
solicitation of offers by the Agents. Once any Agent has recorded
any indication of interest in Notes upon certain terms, and
communicated with the Company, if the Company accepts an offer to
purchase Notes upon such terms, it will prepare a Pricing
Supplement in the form previously approved by the Agents,
reflecting the terms of such Notes and, after approval from the
Presenting Agent, will arrange to have copies of such Pricing
Supplement (together with the Prospectus, if amended or
supplemented) filed with the Commission and will supply an
appropriate number of copies of the Prospectus, as then amended or
supplemented, together with such Pricing Supplement, to the
Presenting Agent (as defined below). See "Delivery of Prospectus."
No settlements with respect to Notes upon such terms may occur
prior to such filing and the Presenting Agent will not, prior to
such filing, mail confirmations to customers who have offered to
purchase Notes upon such terms. After such filing, sales, mailing
of confirmations and settlements may occur with respect to Notes
upon such terms, subject to the provisions of "Delivery of
Prospectus" below.
If the Company decides to post rates and a decision has been
reached to change interest rates, the Company will promptly notify
each Agent. Each Agent will forthwith suspend solicitation of
purchases. At that time, the Agents will recommend and the Company
will establish rates to be so "posted." Following establishment of
posted rates and prior to the filing described in the following
sentence, the Agents may only record indications of interest in
purchasing Notes at the posted rates. Once any Agent has recorded
any indication of interest in Notes at the posted rates and
communicated with the Company, if the Company accepts an offer at
the posted rate, it will prepare a Pricing Supplement reflecting
such posted rates and, after approval from the Presenting Agent,
will arrange to have copies of such Pricing Supplement (together
with the Prospectus if amended or supplemented) filed with the
Commission and will supply an appropriate number of copies of the
Prospectus, as then amended or supplemented, to the Presenting
Agent. See "Delivery of Prospectus."
No settlements at the posted rates may occur prior to such filing
and the Presenting Agent will not, prior to such filing, mail
confirmations to customers who have offered to purchase Notes at
the posted rates. After such filing, sales, mailing of
confirmations and settlements may resume, subject to the provisions
of "Delivery of Prospectus" below.
SUSPENSION OF SOLICITATION; AMENDMENT OR SUPPLEMENT
In the event that at the time the Agents, at the direction of
the Company, suspend solicitation of offers to purchase from the
Company there shall be any orders outstanding which have not been
settled, the Company will promptly advise the Agents and the
Trustee whether such orders may be settled and whether copies of
the Prospectus as theretofore amended and/or supplemented as in
effect at the time of the suspension may be delivered in connection
with the settlement of such orders. The Company will have the sole
responsibility for such decision and for any arrangements which may
be made in the event that the Company determines that such orders
may not be settled or that copies of such Prospectus may not be so
delivered.
DELIVERY OF PROSPECTUS
A copy of the Prospectus as most recently amended or
supplemented on the date of delivery thereof, together with the
applicable Pricing Supplement, must be delivered to a purchaser
prior to or together with the earlier of the delivery by the Agents
of (i) the written confirmation of a sale sent to a purchaser or
his agent and (ii) any Note purchased by such purchaser. The
Company shall ensure that the Presenting Agent receives copies of
the Prospectus and each amendment or supplement thereto (including
the applicable Pricing Supplement) in such quantities and within
such time limits as will enable the Presenting Agent to deliver
such confirmation or Note to a purchaser as contemplated by these
procedures and in compliance with the preceding sentence. Copies
of Pricing Supplements should be delivered by telecopy to Lehman
Brothers, Prospectus Delivery Department, Attn: Andrea Springer,
Telecopy: (212) 464-6960 and hard copies via overnight delivery to
Lehman Brothers Inc., Medium-Term Note Department, Attn: Roger A.
Blissett; Merrill Lynch & Co., World Financial Center, North Tower,
10th Floor, New York, New York 10281-1310, Attention: MTN Product
Management, Telephone No.: (212) 449-7474; Telecopy No.: (212) 449-
2234; Salomon Brothers Inc, Seven World Trade Center, 31st Floor,
New York, New York 10048, Attention: Medium Term Note Group,
Telephone No.: (212) 783-5897; Telecopy No.: (212) 783-2274. If,
since the date of acceptance of a purchaser's offer, the Prospectus
shall have been supplemented solely to reflect any sale of Notes on
terms different from those agreed to between the Company and such
purchaser or a change in posted rates not applicable to such
purchaser, such purchaser shall not receive the Prospectus as
supplemented by such new supplement, but shall receive the
Prospectus as supplemented to reflect the terms of the Notes being
purchased by such purchaser and otherwise as most recently amended
or supplemented on the date of delivery of the Prospectus. The
Company will make all such deliveries with respect to all Notes
sold directly by the Company.
REDEMPTION AND REPAYMENT
Unless one or more Redemption Dates are specified in the
applicable Pricing Supplement, the Notes will not be redeemable
prior to their Stated Maturity. If one or more Redemption Dates
are so specified with respect to any Note, the applicable Pricing
Supplement will also specify one or more redemption prices
(expressed as a percentage of the principal amount of such Note)
("Redemption Prices") and the redemption period or periods
("Redemption Periods") during which such Redemption Prices shall
apply. Unless otherwise specified in the Pricing Supplement, any
such Note shall be redeemable at the option of the Company at the
specified Redemption Price applicable to the Redemption Period
during which such Note is to be redeemed, together with interest
accrued to the Redemption Date. Unless otherwise specified in the
applicable Pricing Supplement, the Notes will not be subject to any
sinking fund. The Company may redeem any of the Notes that are
redeemable and remain outstanding either in whole or from time to
time in part, upon not less than 30 nor more than 60 days' notice.
In the event of a redemption in part of any Note, a new Note for
the amount of the unredeemed portion shall be issued in the name of
the Holder upon cancellation of the redeemed Note.
The Pricing Supplement relating to each Note will indicate
either that such Note cannot be repaid prior to Stated Maturity or
that such Note will be repayable at the option of the holder on a
date or dates specified prior to Stated Maturity at a price or
prices set forth in the applicable Pricing Supplement, together
with accrued interest to the date of repayment.
In order for a Note that is subject to repayment at the option
of the Holder to be repaid, the Paying Agent must receive at least
30 days but not more than 45 days prior to the repayment date (a)
appropriate wire instructions and (b) either (i) the Note with the
form entitled "Option to Elect Repayment" attached to the Note duly
completed or (ii) a telegram, telex, facsimile transmission or
letter from a member of a national securities exchange or the
National Association of Securities Dealers, Inc. or a commercial
bank or trust company in the United States setting forth the name
of the Holder of the Note, the principal amount of the Note, the
portion of the principal amount of the Note to be repaid, the
certificate number or a description of the tenor and terms of the
Note, a statement that the option to elect repayment is being
exercised thereby and a guarantee that the Note to be repaid with
the form entitled "Option to Elect Repayment" attached to the Note
duly completed will be received by the Paying Agent not later than
five Business Days after the date of such telegram, telex,
facsimile transmission or letter and such Note and form duly
completed must be received by the Paying Agent by such fifth
Business Day. Exercise of the repayment option by the Holder of a
Note shall be irrevocable, except as otherwise described under
"Interest Rate Reset" and "Extension of Maturity" in the Prospectus
Supplement. The repayment option may be exercised by the Holder of
a Note for less than the entire principal amount of the Note
provided that the principal amount of the Note remaining
outstanding after repayment is an authorized denomination. No
transfer or exchange of any Note (or, in the event that any Note is
to be repaid in part, the portion of the Note to be repaid) will be
permitted after exercise of a repayment option. All questions as
to the validity, eligibility (including time of receipt) and
acceptance of any Note for repayment will be determined by the
Company, whose determination will be final, binding and
nonappealable.
If a Note is represented by a Global Security, the
Depositary's nominee will be the Holder of such Note and therefore
will be the only entity that can exercise a right to repayment. In
order to ensure that the Depositary's nominee will timely exercise
a right to repayment with respect to a particular Note, the
beneficial owner of such Note must instruct the broker or other
direct or indirect participant through which it holds an interest
in such Note to notify the Depositary of its desire to exercise a
right to repayment. Different firms have different cut-off times
for accepting instructions from their customers and, accordingly,
each beneficial owner should consult the broker or other direct or
indirect participant through which it holds an interest in a Note
in order to ascertain the cut-off time by which such an instruction
must be given in order for timely notice to be delivered to the
Depositary.
Unless otherwise specified in the applicable Pricing
Supplement, if a Note is an Original Issue Discount Note, the
amount payable on such Note in the event of redemption or repayment
prior to its Stated Maturity shall be the Amortized Face Amount of
such Note, as specified in the applicable Pricing Supplement, as of
the Redemption Date or the date of repayment, as the case may be.
AUTHENTICITY OF SIGNATURES
The Company will cause the Trustee to furnish the Agents from
time to time with the specimen signatures of each of the Trustee's
officers, employees and agents who have been authorized by the
Trustee to authenticate Notes, but the Agents will have no
obligation or liability to the Company or the Trustee in respect of
the authenticity of the signature of any officer, employee or agent
of the Company or the Trustee on any Note.
ADVERTISING COSTS
The Company will determine with the Agents the amount and
nature of advertising that may be appropriate in offering the
Notes. Advertising expenses incurred with the consent of the
Company will be paid by the Company.
BUSINESS DAY
"Business Day" shall mean any Monday, Tuesday, Wednesday,
Thursday or Friday that in the City of New York is not a day on
which banking institutions are authorized or required by law or
regulation to close, and with respect to Notes as to which LIBOR is
an applicable Base Rate, is also a London Business Day. "London
Business Day" means any day (a) on which dealings in deposits in
the Specified Currency are transacted in the London interbank
market, (b) if the Indexed Currency is other than the ECU, on which
dealings in deposits in such Indexed Currency are transacted in the
London interbank market or (c) if the Indexed Currency is the ECU,
that is not designated as an ECU Non-Settlement Day by the ECU
Banking Association in Paris or otherwise generally regarded in the
ECU interbank market as a day on which payments on ECUs shall not
be made. "Market Day" shall mean, with respect to any Note other
than any LIBOR Note, any Business Day in the City of New York and,
with respect to any LIBOR Note, any Business Day in the City of New
York which is also a London Business Day.
PART II: PROCEDURES FOR CERTIFICATED NOTES
CURRENCY
Certificated Notes will be denominated in U.S. dollars or in
one or more foreign currencies or foreign currency units, as
specified in the applicable Pricing Supplement. For special
procedures relating to Multi-Currency Notes, see Part III hereof.
REGISTRATION
Certificated Notes may be presented for registration of
transfer or exchange at the Trustee's New York office.
DENOMINATIONS
Except as provided in the applicable Pricing Supplement,
Certificated Notes will be issued and payable in U.S. dollars in
the denomination of $1,000 and any larger denomination which is an
integral multiple of $1,000.
MATURITY
Upon presentation of each Certificated Note at Maturity the
Trustee (or any duly appointed Paying Agent) will pay the principal
amount thereof, together with accrued interest due at maturity.
Such payment shall be made in immediately available funds in U.S.
dollars, provided that the Certificated Note is presented to the
Trustee (or any such Paying Agent) in time for the Trustee (or such
Paying Agent) to make payments in such funds in accordance with its
normal procedures. The Company will provide the Trustee (and any
such Paying Agent) with funds available for immediate use for such
purpose. Certificated Notes presented at Maturity will be
cancelled by the Trustee as provided in the Indenture.
SETTLEMENT PROCEDURES
In the event of a purchase of Certificated Notes by an Agent,
as principal, appropriate Settlement details will be as set forth
below unless such details are set forth in the applicable Purchase
Agreement to be entered into between such Agent and the Company
pursuant to the Distribution Agreement.
In the event of the sale of a Certified Note that is a Multi-
Currency Note or an Indexed Note, whether the sale is through an
Agent or to an Agent, as principal, additional or different
Settlement details may be set forth in an amendment to these
administrative procedures to be entered into between such Agent and
the Company.
Other than as contemplated above, Settlement procedures with
regard to each Certificated Note sold through each Agent shall be
as follows:
A. Such Agent (the "Presenting Agent") will advise the
Company by telephone, telex or facsimile, of the following
Settlement information:
1. Exact name in which the Note is to be registered
("Registered Owner").
2. Exact address of the Registered Owner and address
for payment of principal and interest, if any.
3. Taxpayer identification number of the Registered
Owner.
4. Principal amount of the Note (and, if multiple
Notes are to be issued, denominations thereof).
5. Settlement date.
6. Stated Maturity and, if the Company has the option
to extend the Stated Maturity, the Extension
Periods and the Final Maturity Date.
7. Issue Price and any OID information.
8. Trade Date/Original Issue Date.
9. If such Note is a Fixed Rate Note, whether such
Note is an Amortizing Note.
10. Interest rate (including, if appropriate, such
interest rate information applicable to any
Extension Period):
(a) Fixed Rate Certificated Notes:
(i) interest rate
(ii) interest payment dates, if
other than as specified above
(iii) date or dates, if any, on which
the interest rate may be reset
and the basis or formula, if
any, for such resetting
(iv) overdue rate, if any
(b) Floating Rate Certificated Notes:
(i) interest rate basis
(ii) initial interest rate
(iii) spread or spread multiplier, if
any
(iv) date or dates, if any, on which
the spread or spread multiplier
may be reset and the basis or
formula, if any, for such
resetting
(v) interest rate reset periods
(vi) interest payment dates
(vii) index maturity
(viii) maximum and minimum interest
rates, if any
(ix) record dates
(x) interest determination dates
(xi) overdue rate, if any.
11. The date on or after which the Certificated Notes
are redeemable at the option of the Company or are
to be repaid at the option of the Holder, and
additional redemption or repurchase provisions, if
any.
12. Wire transfer information.
13. Presenting Agent's commission (to be paid in the
form of a discount from the proceeds remitted to
the Company upon Settlement).
14. That the Note will be a Certificated Note.
B. The Company will confirm the above Settlement information
to the Trustee by telephone, telex or facsimile, and the Trustee
will assign a Note number to the transaction. If the Company
rejects an offer, the Company will promptly notify the Presenting
Agent and the Trustee by telephone.
C. The Trustee will complete the first page of the
preprinted 4-ply Certificated Note packet, the form of which was
previously approved by the Company, the Agents and the Trustee.
D. The Trustee will deliver the Certificated Note (with the
attached white confirmation) and the yellow and blue stubs to the
Presenting Agent. The Presenting Agent will acknowledge receipt of
the Certificated Note by completing the yellow stub and returning
it to the Trustee.
E. The Presenting Agent will cause to be wire transferred to
a bank account designated by the Company immediately available
funds in U.S. dollars in the amount of the principal amount of the
Certificated Note, less the applicable commission or discount, if
any.
F. The Presenting Agent will deliver the Certificated Note
(with the attached white confirmation) to the purchaser against
payment in immediately available funds in the amount of the
principal amount of the Certificated Note. The Presenting Agent
will deliver to the purchaser a copy of the most recent Prospectus
applicable to the Certificated Note with or prior to any written
offer of Certificated Notes, delivery of the Certificated Note and
the confirmation and payment by the purchaser for the Certificated
Note.
G. The Presenting Agent will obtain the acknowledgment of
receipt for the Certificated Note and Prospectus by the purchaser
through the purchaser's completion of the blue stub.
H. The Trustee will mail the pink stub to the Company's
Treasurer.
SETTLEMENT PROCEDURES TIMETABLE
For offers to purchase Certificated Notes accepted by the
Company, Settlement procedures "A" through "H" set forth above
shall be completed on or before the respective times set forth
below:
SETTLEMENT
PROCEDURE TIME (NEW YORK)
A 5 PM on the Trade Date
B 3 PM on the Business Day prior
to Settlement Date
C-D 12 Noon on the Settlement Date
E 2:15 PM on the Settlement Date
F-G 3 PM on the Settlement Date
H 5 PM on Business Day after the
Settlement Date
FAILS
In the event that a purchaser of a Certificated Note shall
either fail to accept delivery of or make payment for such
Certificated Note on the date fixed by the Company for Settlement,
the Presenting Agent will immediately notify the Trustee and the
Company's Treasurer by telephone, confirmed in writing, of such
failure and return the Certificated Note to the Trustee. Upon the
Trustee's receipt of the Certificated Note from the Presenting
Agent, the Company will promptly return to the Presenting Agent an
amount of immediately available funds in U.S. dollars equal to any
amount previously transferred to the Company in respect of the
Certificated Note pursuant to advances made by the Agent. Such
returns will be made on the Settlement Date, if possible, and in
any event not later than 12 noon (New York City time) on the
Business Day following the Settlement Date. The Company will
reimburse the Presenting Agent on an equitable basis for its loss
of the use of the funds during the period when the funds were
credited to the account of the Company. Upon receipt of the
Certificated Note in respect of which the default occurred, the
Trustee will mark the Certificated Note "cancelled," make
appropriate entries in its records and deliver the Certificated
Note to the Company with an appropriate debit advice. The
Presenting Agent will not be entitled to any commission with
respect to any Certificated Note which the purchaser does not
accept or make payment for.
III: SPECIAL ADMINISTRATIVE PROCEDURES FOR MULTI-CURRENCY NOTES
Unless otherwise set forth in an applicable Foreign Currency
Amendment, the following procedures and terms shall apply to Multi-
Currency Notes in addition to, and to the extent inconsistent
therewith in replacement of, the procedures and terms set forth
above.
DENOMINATIONS
The authorized denominations of any Multi-Currency Note will
be the amount of the Specified Currency for such Multi-Currency
Note equivalent at the noon buying rate in the City of New York for
cable transfers for such Specified Currency (the "Market Exchange
Rate") as certified for customs purposes by the Federal Reserve
Bank of New York on the first Business Day in the City of New York
and the country issuing such currency (or, in the case of ECUs,
Brussels) next preceding the date on which the Company accepts the
offer to purchase such Multi-Currency Note, to U.S. $1,000 (rounded
down to an integral multiple of 1,000 units of such Specified
Currency) and any greater amount that is an integral multiple of
1,000 units of such Specified Currency.
CURRENCIES
Unless otherwise specified in the applicable Pricing
Supplement, payments of principal of (and premium, if any) and
interest on all Multi-Currency Notes will be made in the applicable
Specified Currency; provided, however, that payments of principal
of (and premium, if any) and interest on Multi-Currency Notes
denominated in other than U.S. dollars will nevertheless be made in
U.S. dollars (i) at the option of the Holders thereof under the
procedures described below and (ii) at the option of the Company in
the case of imposition of exchange controls or other circumstances
beyond the control of the Company as described below.
PAYMENT OF PRINCIPAL AND INTEREST
If so specified in the applicable Pricing Supplement, except
as provided in the next paragraph, payments of interest and
principal (and premium, if any) with respect to any Multi-Currency
Note will be made in U.S. dollars if the Holder of such Note on the
relevant Regular Record Date or at Maturity, as the case may be,
has transmitted a written request for such payment in U.S. dollars
to the Trustee at its Corporate Trust Office in The City of New
York on or prior to such Regular Record Date or the date 15 days
prior to Maturity, as the case may be. Such request may be in
writing (mailed or hand delivered) or by cable, telex or other form
of facsimile transmission. Any such request made with respect to
any Multi-Currency Note by a Holder will remain in effect with
respect to any further payments of interest and principal (and
premium, if any) with respect to such Multi-Currency Note payable
to such Holder, unless such request is revoked on or prior to the
relevant Regular Record Date or the date 15 days prior to Maturity,
as the case may be. Holders of Multi-Currency Notes whose Notes
are registered in the name of a broker or nominee should contact
such broker or nominee to determine whether and how an election to
receive payments in U.S. dollars may be made.
The U.S. dollar amount to be received by a Holder of a Multi-
Currency Note who elects to receive payments in U.S. dollars will
be based on the highest bid quotation in The City of New York
received by the Currency Determination Agent (as defined below) as
of noon New York City time on the third Business Day next preceding
the applicable payment date from three recognized foreign exchange
dealers (one of which may be the Currency Determination Agent) for
the purchase by the quoting dealer of the Specified Currency for
U.S. dollars for settlement on such payment date in the aggregate
amount of the Specified Currency payable to all Holders of Multi-
Currency Notes electing to receive U.S. dollar payments and at
which the applicable dealer commits to execute a contract. If
three such bid quotations are not available on the third Business
Day preceding the date of payment of principal (and premium, if
any) or interest with respect to any such Multi-Currency Note, such
payment will be made in the Specified Currency. All currency
exchange costs associated with any payment in U.S. dollars on any
such Multi-Currency Note will be borne by the Holder thereof by
deductions from such payment. Unless otherwise provided in the
applicable Pricing Supplement, the Company will be the currency
determination agent (the "Currency Determination Agent") with
respect to the Multi-Currency Notes.
PAYMENT CURRENCY
If the principal of (and premium, if any) or interest on any
Multi-Currency Note is payable in any currency other than U.S.
dollars and such Specified Currency is not available due to the
imposition of exchange controls or other circumstances beyond the
control of the Company, the Company will be entitled to satisfy its
obligations to Holders of the Multi-Currency Notes by making such
payment in U.S. dollars on the basis of the Market Exchange Rate on
the last date such Specified Currency was available (the
"Conversion Date"). Any payment made under such circumstances in
U.S. dollars where the required payment is in other than U.S.
dollars will not constitute an Event of Default under the
Indenture.
If payment in respect of a Note is required to be made in any
currency unit (e.g., ECU) and such currency unit is unavailable due
to the imposition of exchange controls or other circumstances
beyond the Company's control, then all payments in respect of such
Multi-Currency Note shall be made in U.S. dollars until such
currency unit is again available. The amount of each payment in
U.S. dollars shall be computed on the basis of the equivalent of
the currency unit in U.S. dollars, which shall be determined by the
Company or its agent on the following basis. The component
currencies of the currency unit for this purpose (the "Component
Currencies") shall be the currency amounts that were components of
the currency unit as of the Conversion Date for such currency unit.
The equivalent of the currency unit in U.S. dollars shall be
calculated by aggregating the U.S. dollar equivalents of the
Component Currencies. The U.S. dollar equivalent of each of the
Component Currencies shall be determined by the Company or such
agent on the basis of the Market Exchange Rate for each such
Component Currency that is available as of the third Business Day
prior to the date on which the relevant payment is due and for each
such Component Currency that is unavailable, if any, as of the
Conversion Date for such Component Currency.
If the official unit of any Component Currency is altered by
way of combination or subdivision, the number of units of that
currency as a Component Currency shall be divided or multiplied in
the same proportion, if two or more Component Currencies are
consolidated into a single currency, the amounts of those
currencies as Component Currencies shall be replaced by an amount
in such single currency equal to the sum of the amounts of the
consolidated Component Currencies expressed in such single
currency. If any Component Currency is divided into two or more
currencies, the amount of the original Component Currency shall be
replaced by the amounts of such two or more currencies, the sum of
which shall be equal to the amount of the original Component
Currency.
OUTSTANDING MULTI-CURRENCY NOTES
For purposes of calculating the principal amount of any Multi-
Currency Note for any purpose under the Indenture, the principal
amount of such Multi-Currency Note at any time Outstanding shall be
deemed to be the U.S. dollar equivalent at the Market Exchange
Rate, determined as of the date of the original issuance of such
Multi-Currency Note, of the principal amount of such Multi-Currency
Note.
DETAILS FOR SETTLEMENT OF MULTI-CURRENCY NOTES
In addition to the Settlement information specified in
"Settlement Procedures" above, the Presenting Agent shall
communicate to the Company in the manner set forth in "Settlement
Procedures" the following information:
1. Specified Currency
2. Denominations
3. Wire transfer and overseas bank account information (if
holder has elected payment in a Specified Currency).
Whether the sale is through an Agent or to the Agent, as
principal, additional or different Settlement details may be set
forth in an amendment to these administrative procedures to be
agreed to by the Agent and the Company.
PART IV: SPECIAL ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes
for eligibility in the book-entry system maintained by DTC, the
Trustee will perform or cause to be performed the custodial,
document control and administrative functions described below, in
accordance with its respective obligations under a Letter of
Representations from the Company and the Trustee to DTC and a
Medium-Term Note Certificate Agreement previously entered into
between the Trustee and DTC, and its obligations as a participant
in DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Except as otherwise set forth in this Exhibit B, Book-Entry Notes
will be issued in accordance with the administrative procedures set
forth below.
ISSUANCE
On any date of settlement (as defined under "Settlement"
below) for one or more Fixed Rate Book-Entry Notes, the Company
will issue a single Global Security in fully registered form
without coupons representing up to $100,000,000 principal amount,
or the equivalent thereof in any Specified Currency, other than
U.S. dollars, at the Market Exchange Rate used to determine the
denomination of such Book-Entry Note as described below (rounded
down to an integral multiple of 1,000 units of such Specified
Currency), of all of such Notes that have the same original
issuance date, interest rate, redemption or repayment provisions
and Stated Maturity. Similarly, on any settlement date for one or
more Floating Rate Book-Entry Notes, the Company will issue a
single Global Security representing up to $100,000,000 principal
amount, or the equivalent thereof in any Specified Currency, other
than U.S. dollars, at the Market Exchange Rate used to determine
the denomination of such Book-Entry Note as described below
(rounded down to an integral multiple of 1,000 units of such
Specified Currency), of all of such Notes that have the same
interest rate formula, original issuance date, Initial Interest
Rate, Interest Payment Dates, Index Maturity, Spread, Spread
Multiplier, minimum interest rate (if any), maximum interest rate
(if any), redemption or repayment provisions and Stated Maturity.
Each Global Security will be dated and issued as of the date of its
authentication by the Trustee, as Trustee. Each Global Security
will have an interest accrual date (the "Interest Accrual Date"),
which will be (i) with respect to an original Global Security (or
any portion thereof), its original issuance date and (ii) with
respect to any Global Security (or portion thereof) issued
subsequently upon exchange of a Global Security or in lieu of a
destroyed, lost or stolen Global Security, the most recent Interest
Payment Date to which interest has been paid or duly provided for
on the predecessor Global Security or Securities (or if no such
payment or provision has been made, the original issuance date of
the predecessor Global Security), regardless of the date of
authentication of such subsequently issued Global Security. No
Global Security will represent (i) both Fixed Rate and Floating
Rate Book-Entry Notes or (ii) any Certificated Note.
IDENTIFICATION NUMBERS
The Company will arrange, on or prior to commencement of a
program for the offering of Book-Entry Notes, with the CUSIP
Service Bureau of Standard & Poor's Corporation (the "CUSIP Service
Bureau") for the reservation of a series of CUSIP numbers
(including tranche numbers), consisting of approximately 900 CUSIP
numbers and relating to Global Securities representing the Book-
Entry Notes. The Company will obtain a written list of such series
of reserved CUSIP numbers and will deliver to the Trustee and DTC
such written list of 900 CUSIP numbers of such series. The Company
will assign CUSIP numbers to Global Securities as described below
under Settlement Procedure "B." DTC will notify the CUSIP Service
Bureau periodically of the CUSIP numbers that the Company has
assigned to Global Securities. When fewer than 100 of the reserved
CUSIP numbers remain unassigned to Global Securities, and if it
deems necessary, the Company will reserve additional CUSIP numbers
for assignment to Global Securities representing Book-Entry Notes.
Upon obtaining such additional CUSIP numbers the Company shall
deliver such additional CUSIP numbers to the Trustee and DTC.
REGISTRATION
Each Global Security will be registered in the name of Cede &
Co., as nominee for DTC, on the Securities Register maintained
under the Indenture governing such Global Security. The beneficial
owner of a Book-Entry Note (or one or more indirect participants in
DTC designated by such owner) will designate one or more
participants in DTC with respect to such Book-Entry Note (the
"Participants") to act as agent or agents for such owner in
connection with the book-entry system maintained by DTC, and DTC
will record in book-entry form, in accordance with instructions
provided by such Participants, a credit balance with respect to
such Book-Entry Note in the account of such Participants. The
ownership interest of such beneficial owner in such Book-Entry Note
will be recorded through the records of such Participants or
through the separate records of such Participants and one or more
indirect participants in DTC.
VOTING
In the event of any solicitation of consents from or voting by
holders of the Book-Entry Notes, the Company or the Trustee shall
establish a record date for such purposes (with no provision for
revocation of consents or votes by subsequent holders) and shall,
to the extent possible, send notice of such record date to DTC not
less than 15 calendar days in advance of such record date.
TRANSFERS
Transfers of a Book-Entry Note will be accomplished by book
entries made by DTC and, in turn, by Participants (and in certain
cases, one or more indirect participants in DTC) acting on behalf
of beneficial transferors and transferees of such Book-Entry Note.
CONSOLIDATION AND EXCHANGE
The Trustee may deliver to DTC and the CUSIP Service Bureau at
any time a written notice of consolidation specifying (i) the CUSIP
numbers of two or more Outstanding Global Securities that represent
(A) Fixed Rate Book-Entry Notes having the same original issuance
date, interest rate, redemption and repayment provisions and Stated
Maturity and with respect to which interest has been paid to the
same date or (B) Floating Rate Book-Entry Notes having the same
interest rate formula, original issuance date, Initial Interest
Rate, Interest Payment Dates, Index Maturity, Spread or Spread
Multiplier, minimum interest rate (if any), maximum interest rate
(if any), redemption and repayment provisions and with respect to
which interest has been paid to the same date, (ii) a date,
occurring at least thirty days after such written notice is
delivered and at least thirty days before the next Interest Payment
Date for such Book-Entry Notes, on which such Global Securities
shall be exchanged for a single replacement Global Security and
(iii) a new CUSIP number, obtained from the Company, to be assigned
to such replacement Global Security. Upon receipt of such a
notice, DTC will send to its Participants (including the Trustee)
a written reorganization notice to the effect that such exchange
will occur on such date. Prior to the specified exchange date, the
Trustee will deliver to the CUSIP Service Bureau a written notice
setting forth such exchange date and the new CUSIP number and
stating that, as of such exchange date, the CUSIP numbers of the
Global Securities to be exchanged will no longer be valid. On the
specified exchange date, the Trustee will exchange such Global
Securities for a single Global Security bearing the new CUSIP
number and a new Interest Accrual Date, and the CUSIP numbers of
the exchanged Global Securities will, in accordance with CUSIP
Service Bureau procedures, be cancelled and not immediately
reassigned. Notwithstanding the foregoing, if the Global
Securities to be exchanged exceed $150,000,000 (or the equivalent
thereof in any Specified Currency other than U.S. dollars at the
Market Exchange Rate used to determine the denomination of such
Book-Entry Note as described below (rounded down to an integral
multiple of 1,000 units of such Specified Currency)) in aggregate
principal amount, one Global Security will be authenticated and
issued to represent each $150,000,000 (or the equivalent thereof in
any Specified Currency other than U.S. dollars at the Market
Exchange Rate used to determine the denomination of such Book-Entry
Note as described below (rounded down to an integral multiple of
1,000 units of such Specified Currency)) of principal amount of the
exchanged Global Securities and an additional Global Security will
be authenticated and issued to represent any remaining principal
amount of such Global Securities (see "Denominations" below).
NOTICE OF REDEMPTION AND REPAYMENT DATES
The Trustee will give notice to DTC prior to each redemption
date or repayment date (as specified in the Book-Entry Note), if
any, at the time and in the manner set forth in the letter of
redemption.
DENOMINATIONS
Book-Entry Notes denominated in U.S. dollars will be issued in
principal amounts of $1,000 or any amount in excess thereof that is
an integral multiple of $1,000. The authorized denomination of any
Book-Entry Notes denominated in other than U.S. dollars will be the
amount of the Specified Currency for such Book-Entry Note
equivalent, at the Market Exchange Rate on the first Business Day
in the City of New York and the country issuing such currency (or,
in the case of ECUs, Brussels) next preceding the date on which the
Company accepts the offer to purchase such Book-Entry Note, to U.S.
$1,000 (rounded down to an integral multiple of 1,000 units of such
Specified Currency) and any greater amount that is an integral
multiple of 1,000 units of such Specified Currency. Global
Securities representing one or more Book-Entry Notes will be
denominated in principal amounts not in excess of $100,000,000, or
the equivalent thereof in any Specified Currency other than U.S.
dollars at the Market Exchange Rate used to determine the
denomination of such Book-Entry Note (rounded down to an integral
multiple of 1,000 units of such Specified Currency). If one or
more Book-Entry Notes having an aggregate principal amount in
excess of $150,000,000 (or the equivalent thereof in any Specified
Currency other than U.S. dollars at the Market Exchange Rate used
to determine the denomination of such Book-Entry Note down to an
integral multiple of 1,000 units of such Specified Currency) would,
but for the preceding sentence, be represented by a single Global
Security, then one Global Security will be issued to represent each
$150,000,000 principal amount, or the equivalent thereof in any
Specified Currency other than U.S. dollars at the Market Exchange
Rate used to determine the denomination of such Book-Entry Note
(rounded down to an integral multiple of 1,000 units of such
Specified Currency), of such Book-Entry Note or Notes and an
additional Global Security will be issued to represent any
remaining principal amount of such Book-Entry Note or Notes. In
such a case, each of the Global Securities representing such Book-
Entry Note or Notes shall be assigned the same CUSIP number.
INTEREST
General. Interest on each Book-Entry Note will accrue from the
date of issue of the Global Security representing such Note. Each
payment of interest on a Book-Entry Note will include interest
accrued through the day preceding, as the case may be, the Interest
Payment Date or the date of Maturity, redemption or repayment;
provided, however, that if the Interest Reset Dates with respect to
any such Note are daily or weekly, interest payable on any Interest
Payment Date, other than interest payable on any date on which
principal for such Note is payable, will include interest accrued
from but excluding the second preceding Regular Record Date to and
including the next preceding Regular Record Date. Interest payable
at the Maturity or upon earlier redemption or repayment of a Book-
Entry Note will be payable to the Person to whom the principal of
such Note is payable. Standard & Poor's Corporation will use the
information received in the pending deposit message described under
Settlement Procedure "C" below in order to include the amount of
any interest payable and certain other information regarding the
related Global Security in the appropriate weekly bond report
published by Standard & Poor's Corporation.
Floating Rate Note Notices. On the first Business Day of
January, April, July and October of each year, the Trustee will
deliver to the Company and DTC a written list of Regular Record
Dates and Interest Payment Dates that will occur with respect to
Floating Rate Book-Entry Notes during the six-month period
beginning on such first Business Day. Promptly after each Interest
Determination Date (as defined in Appendix A hereto) for Floating
Rate Notes, the Company will notify the Trustee, and the Trustee in
turn will notify Standard & Poor's Corporation, of the interest
rates determined on such Interest Determination Date.
PAYMENTS OF PRINCIPAL AND INTEREST
Payments of Interest Only. Promptly after each Regular Record
Date, the Trustee will deliver to the Company and DTC a written
notice specifying by CUSIP number the amount of interest to be paid
on each Global Security on the following Interest Payment Date
(other than an Interest Payment Date coinciding with Maturity or an
earlier redemption or repayment date) and the total of such
amounts. DTC will confirm the amount payable on each Global
Security on such Interest Payment Date by reference to the daily
bond reports published by Standard & Poor's Corporation. The
Company will pay to the Trustee, as paying agent, the total amount
of interest due on such Interest Payment Date (other than at
Maturity), and the Trustee will pay such amount to DTC at the times
and in the manner set forth below under "Manner of Payment."
Promptly after each Interest Determination Date for Floating Rate
Book-Entry Notes, the Calculation Agent will notify the Trustee and
Standard & Poor's Corporation of the interest rates determined on
such Interest Determination Date.
Payments at Maturity or Upon Redemption or Repayment. On or
about the first Business Day of each month, the Trustee will
deliver to the Company and DTC a written list of principal and
interest to be paid on each Global Security maturing either at
maturity or any redemption or repayment date in the following
month. The Company, the Trustee and DTC will confirm the amounts
of such principal and interest payments with respect to each such
Global Security on or about the fifth Business Day preceding the
Maturity or redemption or repayment date of such Global Security.
The Company will pay to the Trustee, as the paying agent, the
principal amount of such Global Security, together with interest
due at such Maturity or redemption or repayment date, as the case
may be. The Trustee will pay such amount to DTC at the times and
in the manner set forth below under "Manner of Payment."
Promptly after payment to DTC of the principal and interest
due at the Maturity of such Global Security, the Trustee will
cancel such Global Security and deliver it to the Company with an
appropriate debit advice. On the first Business Day of each month,
the Trustee will prepare a written statement indicating the total
principal amount of Outstanding Global Securities for which it
serves as paying agent as of the immediately preceding Business
Day.
Manner of Payment. The total amount of any principal and
interest due on Global Securities on any Interest Payment Date or
at Maturity or upon redemption or repayment shall be paid by the
Company to the Trustee in funds available for use by the Trustee as
of 9:30 A.M. (New York City time) on such date. The Company will
make such payment on such Global Securities by instructing the
Trustee to withdraw funds from an account maintained by the Company
at the Trustee. For maturity, redemption or any other principal
payments: prior to 10 A.M. (New York City time) on such date or as
soon as possible thereafter, the Trustee will make such payments to
DTC in same day funds in accordance with DTC's Same Day Funds
Settlement Paying Agent Operating Procedures. For interest
payments: the Trustee will make such payments to DTC in accordance
with existing arrangements between DTC and the Trustee. DTC will
allocate such payments to its Participants in accordance with its
existing operating procedures. Neither the Company nor the Trustee
(as Trustee or as Paying Agent nor any other Paying Agent) shall
have any direct responsibility or liability for the payment by DTC
to such Participants of the principal of and interest on the Book-
Entry Notes.
Withholding Taxes. The amount of any taxes required under
applicable law to be withheld from any interest payment on a Book-
Entry Note will be determined and withheld by the Participant,
indirect participant in DTC or other Person responsible for
forwarding payments and materials directly to the beneficial owner
of such Note.
SETTLEMENT PROCEDURES
In the event of a purchase of Book-Entry Notes by an Agent, as
principal, Settlement details will be as set forth below unless
such details are set forth in the applicable Purchase Agreement to
be entered into between such Agent and the Company pursuant to the
Distribution Agreement.
In the event of a sale of a Book-Entry Note that is a Multi-
Currency Note or an Indexed Note, whether the sale is through an
Agent or to an Agent, as principal, additional or different
Settlement details may be set forth in an amendment to the
administrative procedures to be entered into between such Agent and
the Company.
Other than as contemplated above, settlement procedures with
regard to each Book-Entry Note sold by the Company through an
Agent, as agent, shall be as follows:
A. The Presenting Agent will advise the Company by telephone,
telex or facsimile, of the following settlement information:
1. Principal amount of the Book-Entry Note (and, if multiple
Notes are to be issued, denominations thereof).
2. Settlement date.
3. Stated Maturity and, if the Company has the option to
extend the Stated Maturity, the Extension Periods and the
Final Maturity Date.
4. Issue Price and any OID information.
5. Trade date.
6. If such Book-Entry Note is a Fixed Rate Note, whether
such Note is an Amortizing Note.
7. The DTC Participant account number of such Agent.
8. Interest rate (including, if appropriate, such interest
rate information applicable to any Extension Period):
(a) Fixed Rate Notes:
(i) interest rate
(ii) interest payment dates, if other than as
specified above
(iii) date or dates, if any, on which the
interest rate may be reset and the
basis or formula, if any, for such
resetting
(iv) overdue rate, if any
(b) Floating Rate Notes:
(i) interest rate basis
(ii) initial interest rate
(iii) spread or spread multiplier, if any
(iv) date or dates, if any, on which the
spread or spread multiplier may be reset
and the basis or formula, if any, for
such resetting
(v) interest rate reset periods
(vi) interest payment dates
(vii) index maturity
(viii) maximum and minimum interest rates,
if any
(ix) record dates
(x) interest determination dates
(xi) overdue rate, if any
9. The date on or after which the Book-Entry Notes are
redeemable at the option of the Company or are to be
repaid at the option of the Holder, and additional
redemption or repurchase provisions, if any.
10. Wire transfer information.
11. Presenting Agent's commission (to be paid in the form of
a discount from the proceeds remitted to the Company upon
settlement).
12. That the Note will be a Book-Entry Note.
B. The Company will assign a CUSIP number to the Global Security
representing such Note and then advise the Trustee by
telephone (confirmed in writing at any time on the same date)
or electronic transmission of the information set forth in
Settlement Procedure "A" above, such CUSIP number and the name
of such Agent.
C. The Trustee will enter a pending deposit message through DTC's
Participant Terminal System, providing the following
settlement information to DTC, the Presenting Agent, Standard
& Poor's Corporation and, upon request, the Trustee under the
Indenture pursuant to which such Note is to be issued:
1. The information set forth in Settlement Procedure "A."
2. Identification as a Fixed Rate Book-Entry Note or a
Floating Rate Book-Entry Note.
3. Initial Interest Payment Date for such Note, number of
days by which such date succeeds the related "DTC Record
Date" (which term means the Regular Record Date except in
the case of floating rate notes which reset daily or
weekly in which case it means the date 5 calendar days
immediately preceding the Interest Payment Date) and
amount of interest payable on such Interest Payment Date.
4. Frequency of interest payments (monthly, semiannually,
quarterly, etc.).
5. CUSIP number of the Global Security representing such
Book-Entry Note.
6. Whether such Global Security will represent any other
Book-Entry Note (to the extent known at such time).
7. The number of Participant accounts to be maintained by
DTC on behalf of the Agents or the Trustee.
D. The Trustee, as Trustee, will complete and authenticate the
note certificate evidencing the Global Security representing
such Book-Entry Note.
E. DTC will credit such Book-Entry Note to the Trustee's
participant account at DTC.
F. The Trustee will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC to (i) debit such
Book-Entry Note to the Trustee's participant account and
credit such Note to the Presenting Agent's participant account
and (ii) debit the Presenting Agent's settlement account and
credit the Trustee's settlement account for an amount equal to
the price of such Book-Entry Note less the Presenting Agent's
commission.
G. The Presenting Agent will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC (i) to debit
such Book-Entry Note to the Presenting Agent's participant
account and credit such Note to the participant accounts of
the Participants with respect to such Book-Entry Note and (ii)
to debit the settlement accounts of such Participants and
credit the settlement account of the Presenting Agent for an
amount equal to the price of such Note.
H. Transfers of funds in accordance with SDFS deliver orders
described in Settlement Procedures "F" and "G" will be settled
in accordance with SDFS operating procedures in effect on the
settlement date.
I. The Trustee will credit to an account of the Company
maintained at the Trustee funds available for immediate use in
the amount transferred to the Trustee in accordance with
Settlement Procedure "F."
J. The Presenting Agent will deliver to the purchaser a copy of
the most recent Prospectus applicable to the Book-Entry Note
with or prior to any written offer of Book-Entry Notes and the
confirmation and payment by the purchaser of the Book-Entry
Note.
The Presenting Agent will confirm the purchase of such Book-
Entry Note to the purchaser either by transmitting to the
Participants with respect to such Book-Entry Note a
confirmation order or orders through DTC's institutional
delivery system or by mailing a written confirmation to such
purchaser.
SETTLEMENT PROCEDURES TIMETABLE
For offers to purchase Book-Entry Notes solicited by an Agent,
as agent, and accepted by the Company for settlement, Settlement
Procedures "A" through "J" set forth above shall be completed as
soon as possible but not later than the respective times (New York
City time) set forth below:
SETTLEMENT
PROCEDURES TIME
A-B 11:00 A.M. on the Sale date
C 2:00 P.M. on the Sale date
D 3:00 P.M. on date before
Settlement date
E 10:00 A.M. on Settlement date
F-G 2:00 P.M. on Settlement date
H 4:45 P.M. on Settlement date
I-J 5:00 P.M. on Settlement date
If a sale is to be settled more than one Business Day after
the sale date, Settlement Procedures "A," "B" and "C" shall be
completed as soon as practicable but no later than 11:00 A.M.,
11:00 A.M. and 2:00 P.M., as the case may be, on the first Business
Day after the sale date. If the initial interest rate for a
Floating Rate Book-Entry Note has not been determined at the time
that Settlement Procedure "A" is completed, Settlement Procedures
"B" and "C" shall be completed as soon as such rate has been
determined but no later than 11:00 A.M. and 12:00 Noon,
respectively, on the second Business Day before the settlement
date. Settlement Procedure "I" is subject to extension in
accordance with any extension of Fedwire closing deadlines and in
the other events specified in the SDFS operating procedures in
effect on the settlement date.
If settlement of a Book-Entry Note is rescheduled or canceled,
the Trustee will deliver to DTC, through DTC's Participant Terminal
System, a cancellation message to such effect by no later than 2:00
P.M. on the Business Day immediately preceding the scheduled
settlement date.
FAILURE TO SETTLE
If the Trustee fails to enter an SDFS deliver order with
respect to a Book-Entry Note pursuant to Settlement Procedure "F,"
the Trustee may deliver to DTC, through DTC's Participant Terminal
System, as soon as practicable a withdrawal message instructing DTC
to debit such Book-Entry Note to the Trustee's participant account.
DTC will process the withdrawal message, provided that the
Trustee's participant account contains a principal amount of the
Global Security representing such Book-Entry Note that is at least
equal to the principal amount to be debited. If a withdrawal
message is processed with respect to all the Book-Entry Notes
represented by a Global Security, the Trustee will mark such Global
Security "canceled," make appropriate entries in the Trustee's
records and send such canceled Global Security to the Company. The
CUSIP number assigned to such Global Security shall, in accordance
with CUSIP Service Bureau procedures, be canceled and not
immediately reassigned. If a withdrawal message is processed with
respect to one or more, but not all, of the Book-Entry Notes
represented by a Global Security, the Trustee will exchange such
Global Security for two Global Securities, one of which shall
represent such Book-Entry Note or Notes and shall be canceled
immediately after issuance and the other of which shall represent
the other Book-Entry Notes previously represented by the
surrendered Global Security and shall bear the CUSIP number of the
surrendered Global Security.
If the purchase price for any Book-Entry Note is not timely
paid to the Participants with respect to such Book-Entry Note by
the beneficial purchaser thereof (or a Person, including an
indirect participant in DTC, acting on behalf of such purchaser),
such Participants and, in turn, the Agent for such Book-Entry Note
may enter SDFS deliver orders through DTC's Participant Terminal
System reversing the orders entered pursuant to Settlement
Procedures "F" and "G," respectively. Thereafter, the Trustee will
deliver the withdrawal message and take the related actions
described in the preceding paragraph.
Notwithstanding the foregoing, upon any failure to settle with
respect to a Book-Entry Note, DTC may take any actions in
accordance with its SDFS operating procedures then in effect. In
the event of a failure to settle with respect to one or more, but
not all, of the Book-Entry Notes to have been represented by a
Global Security, the Trustee will provide, in accordance with
Settlement Procedure "D," for the authentication and issuance of a
Global Security representing the other Book-Entry Notes to have
been represented by such Global Security and will make appropriate
entries in its records.
<PAGE>
<PAGE>
EXHIBIT C
PURCHASE AGREEMENT
CBI INDUSTRIES, INC. [DATE]
800 Jorie Boulevard
Oak Brook, Illinois 60521-2268
Attention: Treasurer
The undersigned agrees to purchase the following principal
amount of the Notes described in the Distribution Agreement dated
, 1994 (as it may be supplemented or amended from time
to time, the "Distribution Agreement"):
PRINCIPAL AMOUNT: $
SPECIFIED CURRENCY:
DENOMINATED AND INDEXED
CURRENCIES:
INTEREST RATE: %
DISCOUNT: % of Principal Amount
AGGREGATE PRICE TO BE PAID $
TO COMPANY (IN IMMEDIATELY
AVAILABLE FUNDS):
SETTLEMENT DATE:
AMORTIZING NOTES:
EXTENDIBLE NOTES:
OTHER TERMS:
Terms defined in the Prospectus relating to the Notes and in
the Distribution Agreement shall have the same meaning when used
herein.
[In the case of Notes issued in a Specified Currency other
than U.S. dollars, payments of principal of (and premium, if any)
and interest on all Notes will be made in the applicable Specified
Currency; provided, however, that payments of principal of (and
premium, if any) and interest on Notes denominated in other than
U.S. dollars will nevertheless be made in U.S. dollars (i) at the
option of the Holders thereof, (ii) at the option of the Company in
the case of imposition of exchange controls or other circumstances
beyond the control of the Company as described below or (iii) if so
specified in the applicable Pricing Supplement.
The U.S. dollar amount to be received by a Holder of a Note
denominated in other than U.S. dollars who elects to receive
payments in U.S. dollars will be based on the highest bid quotation
in The City of New York received by the Currency Determination
Agent (as defined below) as of noon New York City time on the third
Business Day next preceding the applicable payment date from three
recognized foreign exchange dealers (one of which may be the
Currency Determination Agent) for the purchase by the quoting
dealer of the Specified Currency for U.S. dollars for settlement on
such payment date in the aggregate amount of the Specified Currency
payable to all Holders of Notes electing to receive U.S. dollar
payments and at which the applicable dealer commits to execute a
contract. If three such bid quotations are not available on the
third Business Day preceding the date of payment of principal (and
premium, if any) or interest with respect to any Note, such payment
will be made in the Specified Currency. All currency exchange
costs associated with any payment in U.S. dollars on any such Note
will be borne by the Holder thereof by deductions from such
payment.]
Our obligation to purchase Notes hereunder is subject to the
continued accuracy of your representations and warranties contained
in the Distribution Agreement and to your performance and
observance of all applicable covenants and agreements contained
therein, including, without limitation, your obligations pursuant
to Section 7 thereof. Our obligation hereunder is subject to the
further condition that we shall receive (a) the opinions required
to be delivered pursuant to Sections 5(e) and 5(h) of the
Distribution Agreement, (b) the certificate required to be
delivered pursuant to Section 5(f) of the Distribution Agreement,
(c) the letter referred to in Section 5(g) of the Distribution
Agreement in each case dated as of the above Settlement Date and
(d) [insert other conditions as appropriate].
In further consideration of our agreement hereunder, you agree
that between the date hereof and the above Settlement Date, you
will not offer or sell, or enter into any agreement to sell, any
debt securities of the Company, other than borrowings under your
revolving credit agreements and lines of credit, the private
placement of securities and issuances of your commercial paper.
We may terminate this Agreement, immediately upon notice to
you, at any time prior to the Settlement Date, if prior thereto
there shall have occurred: (i) any change, or any development
involving a prospective change, in or affecting primarily the
business, properties, condition (financial or other), results of
operations or prospects of the Company or the Company and its
subsidiaries taken as a whole which materially impairs the
investment quality of the Notes; (ii) a suspension or material
limitation in trading in securities generally on the New York Stock
Exchange or the establishment of minimum prices on such exchange;
(iii) a general moratorium on commercial banking activities
declared by Federal, Illinois or New York State authorities; (iv)
any downgrading in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act or any public announcement
that any such organization has under surveillance or review its
rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading,
and no implication of a possible downgrading, of such rating); (v)
any outbreak or escalation of major hostilities in which the United
States is involved, any declaration of war by Congress or any other
substantial national calamity or emergency; or (vi) any material
adverse change in the existing financial, political or economic
conditions in the United States, or you are unable to provide any
of the opinions, certificates or letters referred to in the second
preceding paragraph. In the event of such termination, no party
shall have any liability to the other party hereto, except as
provided in Sections 4, 7 and 13 of the Distribution Agreement.
This Agreement shall be governed by and construed in
accordance with the laws of New York.
[INSERT NAME[S] OF AGENTS]
By:
[Title]
ACCEPTED: ________________, 19
CBI INDUSTRIES, INC.
By:
[Authorized Signatory]
<PAGE>
<PAGE>
EXHIBIT D
[INDEXED NOTE]
AMENDMENT NO.
TO DISTRIBUTION AGREEMENT DATED , 1994, AS
AMENDED
[Insert Title of the Denominated
and Indexed Currencies]
The undersigned hereby agree that for the purposes of the
issue and sale of Notes denominated in [title of currency or
currency unit] (the "Denominated Currency") and indexed to [title
of currency or currency unit] (the "Indexed Currency") pursuant to
the Distribution Agreement, dated , 1994, as it may be
amended (the "Distribution Agreement"), the following additions and
modifications shall be made to the Distribution Agreement. The
additions and modifications adopted hereby shall be of the same
effect for the sale under the Distribution Agreement of all Notes
denominated in the Denominated Currency and indexed to the Indexed
Currency, whether offered on an agency or principal basis, but
shall be of no effect with respect to Notes denominated in any
currency or currency unit other than the Applicable Foreign
Currency.
Except as otherwise expressly provided herein, all terms used
herein which are defined in the Distribution Agreement shall have
the same meanings as in the Distribution Agreement. The terms
Agent or Agents, as used in the Distribution Agreement, shall be
deemed to refer [only] to the undersigned Agents for purposes of
this Amendment.
<PAGE>
[Insert appropriate additions and modifications to the
Distribution Agreement, for example, to opinions of counsel,
conditions to obligations and settlement procedures, etc.]
, 19
CBI INDUSTRIES, INC.
By:
Name:
Title:
[NAME(S) OF AGENT(S) PARTICIPATING
IN THE OFFERING OF THE INDEXED NOTES]
By:
Name:
Title:
EXHIBIT 3. (ii)
BY-LAWS
OF
CBI INDUSTRIES, INC.
(As Amended May 12, 1994)
ARTICLE I
Offices
The registered office of the company shall be located at 100
West Tenth Street, Wilmington, Delaware. The company may also
have such other offices within or without the State of Delaware
as may hereafter be established by or with the authority of the
board of directors.
ARTICLE II
Seal
The seal of the company shall be a round disk consisting of
an outer circle having on its circumference the words "CBI
INDUSTRIES, INC., DELAWARE" and an inner circle having within it
the words "CORPORATE SEAL."
ARTICLE III
Capital Stock
SECTION 1: The holder of each fully paid share of the
capital stock of the company shall be entitled to a certificate
or certificates stating the number of shares owned by such
stockholder. All stock certificates shall be in such form
consistent with law, the certificate of incorporation and these
by-laws as shall from time to time be approved by the board of
directors. They shall be numbered consecutively, signed by the
chairman of the board, the president or a vice-president and by
the secretary or an assistant secretary or the treasurer or an
assistant treasurer and sealed with the corporate seal. In any
case in which such certificate is countersigned manually by
either a transfer agent or registrar other than the company or
one of its employees, the corporate seal and signatures of the
officers of the company, or any of them, and the signature of the
registrar or transfer agent not countersigning manually, as the
case may be, may be engraved or printed facsimiles. In any case
in which any officer who has signed or whose facsimile signature
has been placed on such a certificate shall have ceased to be
such officer before such certificate is issued, it may be issued
by the company with the same effect as if such officer had not
ceased to be such at the date of its issue.
SECTION 2: The names and addresses of the persons to whom
certificates for shares of stock are issued and the number of
shares represented by and the date of the issue and transfer of
each certificate shall be entered on books of the company kept
for that purpose. The stock record and transfer books and the
blank stock certificates shall be kept by such transfer agent or
by the secretary or such other officer as shall be designated by
the board of directors for that purpose.
SECTION 3: Except as otherwise provided in these by-laws or
required by law, shares of stock shall be transferable only on
the books of the company upon surrender of the certificate or
certificates therefor to the secretary or an assistant secretary
of the company, or to the transfer agent of the company if such
an agent shall have been appointed, properly endorsed or
accompanied by proper assignments duly executed by the registered
holder thereof in person or by his attorney duly authorized in
writing. Every certificate surrendered to the company for
transfer or exchange shall be canceled and the date of
cancellation shall be shown thereon. The company shall treat the
registered holder of each certificate for a share or shares of
its stock as the owner of such share or shares until the same
shall have been transferred on the books of the company as above
provided.
SECTION 4: The company, whenever the board of directors
shall so determine, shall maintain one or more transfer offices
or agencies, each in charge of a transfer agent designated by the
board of directors, where the shares of the capital stock of the
company may be transferred, and also one or more registry offic-
es, each in charge of a registrar designated by the board of
directors, where the share of such capital stock may be regis-
tered, and no certificate for shares of such stock in respect of
which a transfer agent and registrar shall have been designated
shall be valid unless countersigned by such transfer agent and
registered by such registrar. The board of directors may also
have such additional rules and regulations as it may deem
expedient concerning the issue, transfer and registration of
certificates for shares of the capital stock of the company.
SECTION 5: The holder of any share of capital stock of the
company shall immediately notify the company of any loss, theft,
destruction or mutilation of the certificate therefor and the
board of directors may, in its discretion, cause a new
certificate or certificates to be issued to him, upon the
surrender of the mutilated certificate or in case of loss, theft
or destruction of the certificate, upon satisfactory proof of
such loss, theft or destruction and upon such terms and indemnity
and with such bond as the board of directors may prescribe, but
the board of directors in its discretion may refuse to replace
any lost or destroyed certificate except upon the order of a
court of competent jurisdiction.
SECTION 6: (a) In order that the company may determine the
stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or entitled to receive
payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance,
a record date, which shall not be more than sixty nor less than
ten days before the date of such meeting, nor more than sixty
days prior to any other action.
(b) If no record date is fixed:
(1) The record date for determining stockholders entitled
to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the
day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on
which the meeting is held.
(2) The record date for determining stockholders for any
other purpose shall be at the close of business on the day
on which the board of directors adopts the resolution
relating thereto.
(c) A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to
any adjournment of the meeting; provided, however, that the board
of directors may fix a new record date for the adjourned meeting.
ARTICLE IV
Meetings of Stockholders
SECTION 1: All meetings of stockholders shall be at the
principal office of the company or such other place as may be
designated by the board of directors from time to time.
SECTION 2: The regular annual meeting of the stockholders
shall be held in the month, on the day and at the hour in each
year as designated by resolution of the board of directors, for
the purpose of electing a board of directors and for the
transaction of such other business as may be properly brought
before such meeting.
SECTION 3: Special meetings of the stockholders for any
purpose or purposes may be called at any time by the chairman of
the board of directors, by the president or by the board of
directors, and no other person or group of persons shall be
entitled to call a special meeting of the stockholders.
SECTION 4: Written or printed notice stating the place, day
and hour of the meeting and, in the case of a special meeting,
the purpose or purposes for which the meeting is called, shall be
delivered not less than ten (10) nor more than sixty (60) days
before the date of the meeting, or in the case of a merger or
consolidation of the company requiring stockholder approval or a
sale, lease or exchange of substantially all of the property and
assets of the company, not less than twenty (20) nor more than
sixty (60) days before the date of the meeting, either personally
or by mail, to each stockholder of record entitled to vote at
such meeting. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail addressed to
the stockholder at his address as it appears on the records of
the company, with postage thereon prepaid.
SECTION 5: At all meetings of stockholders a majority of
the outstanding shares, excluding such shares as may be owned by
the company, represented in person or by proxy, shall constitute
a quorum for the transaction of any business other than
adjourning from time to time until a quorum shall be obtained, or
adjourning sine die, and for any such adjournment a majority vote
of whatever stock shall be represented shall be sufficient. At
any adjourned meeting at which a quorum is present any business
may be transacted which might have been transacted if the meeting
had been held at the time fixed in the notice thereof.
SECTION 6: Each outstanding share which is entitled to vote
on matters submitted to a vote at any meeting of stockholders may
be voted by proxy. Such proxy must be in writing and filed with
the Secretary not later than the time for ascertainment of a
quorum in connection with the meeting at which such proxy is to
be voted. No proxy shall be valid after eleven (11) months from
the date of its execution unless otherwise provided in the proxy.
SECTION 7: The secretary or an assistant secretary shall
make, at least ten (10) days before each meeting of stockholders,
a complete list of the stockholders entitled to vote at such
meeting, arranged in alphabetical order, with the address of, and
the number of shares registered in the name of, each
stockholder. Such list, for a period of ten (10) days prior to
such meeting, shall be kept on file at a place within the city
where the meeting is to be held, which place shall be specified
in the notice of the meeting, or if not so specified, at the
place where the meeting is to be held. Such list shall be
subject to inspection by any stockholder, at any time during
usual business hours, for any purpose germane to the meeting, and
shall also be kept open, at the time and place of the meeting,
subject to the inspection of any stockholder who is present,
during the whole time of the meeting. The stock ledger shall be
the only evidence as to who are the stockholders entitled to
examine the stock ledger, the list required by this section or
the books of the company, or to vote in person or by proxy at any
meeting of stockholders.
SECTION 8: Unless otherwise modified by resolution of the
board of directors of the company, the order of business at each
regular annual meeting of stockholders shall be as follows:
(a) Ascertainment of quorum
(b) Proof of due notice of meeting
(c) Reports of officers and committees
(d) Unfinished business
(e) New business
(f) Election of directors
(g) Adjournment
SECTION 9: Business may be properly brought before an
annual meeting of stockholders by a stockholder only upon the
stockholder's timely notice thereof in writing to the secretary
of the company. To be timely, a stockholder's notice must be in
writing and delivered or mailed by first class United States
mail, postage prepaid, to the secretary of the company not less
than sixty (60) days prior to the first anniversary of the date
of the last meeting of stockholders called for the election of
directors. A stockholder's notice to the secretary shall set
forth as to each matter the stockholder proposes to bring before
the annual meeting (a) a brief description of the business
desired to be brought before the annual meeting, (b) the name and
record address of the stockholder proposing such business,
(c) the class and number of shares of stock of the company which
are beneficially owned by the stockholder, and (d) any material
interest of the stockholder in such business. Notwithstanding
the foregoing, nothing in this Section 9 shall be interpreted or
construed to require the inclusion of information about any such
proposal in any proxy statement distributed by, at the direction
of, or on behalf of the board of directors. The chairman of an
annual meeting shall determine whether any business was properly
brought before the meeting in accordance with the provisions of
this Section 9. If he should determine that such business was
not properly brought before the meeting, he shall so declare to
the meeting and any such business shall not be transacted.
SECTION 10: Nominations of persons for election to the
board of directors of the company shall be made only (a) by or at
the direction of the board of directors or (b) by any stockholder
of the company entitled to vote for the election of directors at
a meeting of stockholders who complies with the procedures set
forth in this Section 10. Such nominations, other than those
made by or at the direction of the board of directors, shall be
made by notice in writing delivered or mailed by first class
United States mail, postage prepaid, to the chairman of the
nominating committee of the board of directors of the company not
less than sixty (60) days prior to the first anniversary of the
date of the last meeting of stockholders called for the election
of directors. Such stockholder's notice shall set forth: (i) as
to each person whom such stockholder proposes to nominate for
election or re-election as a director, (A) the name, age, busi-
ness address and, if known, residence address of each nominee
proposed in such notice, (B) the principal occupation or
employment of each such nominee, (C) the number of shares of
stock of the company which are beneficially owned by each such
nominee, and (D) such other information as would be required by
the federal securities laws and the rules and regulations
promulgated thereunder in respect of an individual nominated as a
director of the company and for whom proxies are solicited by the
board of directors of the company (including such nominee's
written consent to being named in the proxy statement as a
nominee and to serving as a director if elected); and (ii) as to
the stockholder giving the notice, (A) the name and address, as
they appear on the company's books, of such stockholder, and
(B) the class and number of shares of stock of the company which
are beneficially owned by such stockholder. Notwithstanding the
foregoing, nothing in this Section 10 shall be interpreted or
construed to require the inclusion of information about such
nominees in any proxy statement distributed by, at the direction
of, or on behalf of the board of directors. The chairman of any
meeting of stockholders may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by this Section 10, and
if he should so determine, he shall so declare to the meeting and
the nomination shall be disregarded.
ARTICLE V
Directors
SECTION 1: The business and affairs of the company shall be
managed by a board of directors. Directors shall be elected at
each annual meeting of the stockholders, but if for any reason
the election is not held at an annual meeting, it may be held at
a subsequent special meeting of stockholders. The directors
shall be divided into three classes as nearly equal in number as
possible. Each director, when elected, shall hold office for a
term to expire at the third succeeding annual meeting of
shareholders after his election or until his successor is elected
and qualified. The board of directors may accept resignations of
individual directors at any time. Any vacancy occurring in the
board of directors by reason of resignation, death, incapacity or
any other cause, and any newly created directorships resulting
from any increase in the authorized number of directors may be
filled by a majority of the directors then in office, although
less than a quorum, or by a sole remaining director. Any
director so elected to fill a newly created directorship
resulting from any increase in the authorized number of directors
shall be elected to a class designated by the Board and shall
hold office until the next election of that class, and until such
director's successor shall have been elected and qualified. Any
director so elected to fill a vacancy resulting from any other
cause shall serve until the term of that office shall expire, and
until such director's successor shall have been elected and
qualified.
SECTION 2: No person shall be a director who is not a
stockholder of the company.
SECTION 3: Meetings of the board of directors, unless
otherwise designated by the board of directors, shall be held at
the principal office of the company. Regular meetings of the
board of directors shall be held at such times as may be fixed by
resolution of the board. Special meetings of the board of
directors may be called at any time by the chairman of the board
of directors or the president or, in their absence or refusal to
act, by any vice-president. A special meeting may also be called
by the secretary upon the written request of a majority of the
board of directors. A special meeting shall be called by giving
written notice to each director (a) by mail sent to his address
as it appears on the records of the company, or (b) by personal
delivery or (c) by electronic communication prior to the time of
such meeting, stating the time, place and objects of such
meeting. Such notice shall be given by the secretary or an
assistant secretary, but if the secretary or assistant secretary
fails to give the notice, the same may be given by the officer or
directors calling the meeting. No notice need be given of any
regular meeting of the board of directors and special meetings
may be held without notice at any time and place by the unanimous
consent in writing of all the directors.
SECTION 4: A majority of the board of directors shall
constitute a quorum for the transaction of business at any
meeting of the board, but a smaller number may adjourn from time
to time until a quorum is obtained, or may adjourn sine die. At
any adjourned meeting at which a quorum is present any business
may be transacted which might have been transacted if the meeting
had been held at the time fixed in the notice thereof. Common or
interested directors may be counted in determining a quorum at a
meeting of the board of directors which authorizes action
pursuant to Article IX.
SECTION 5: At all meetings of the board of directors the
vote of a majority of the whole board shall be decisive on all
questions before the meeting, and shall be requisite to any
action of the board, except as otherwise provided by law or by
these by-laws. Any contract or transaction made pursuant to
Article IX may be approved by the affirmative vote of the
majority of the disinterested directors even though the
disinterested directors may constitute less than a quorum.
SECTION 6: The order of business at all meetings of the
board of directors shall be as follows:
(a) Submission of and action on minutes of any previous
meeting or meetings which have not been signed by all
the directors.
(b) Consideration of communications
(c) Reports of officers or employees
(d) Reports of committees
(e) Unfinished business
(f) New business
(g) Adjournment
SECTION 7: Any action required or permitted to be taken at
any meeting of the board of directors, or of any committee
thereof, may be taken without a meeting if all members of the
board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes
of proceedings of the board or committee. Such consent shall
have the same effect as a unanimous vote of all directors.
SECTION 8: (a) The board of directors may, in its
discretion, by resolution adopted by a majority of the whole
board, constitute a general executive committee for the board,
appoint the members thereof, and specify its authority and
responsibility. Such committee shall be composed of not less
than five members of the board of directors who shall serve at
the pleasure of the board. The executive committee shall have
such powers, subject to the limitations of paragraph (b) of this
Section 8, and shall perform such duties as the board may
delegate to it in writing from time to time, including the
immediate oversight and direction of the business affairs of the
company.
(b) The executive committee shall be organized and shall
perform its functions as directed by the board. Any action taken
by the executive committee shall be promptly reported to the
board of directors as a whole for ratification. The committee
shall act by a majority of the members thereof, and any action
duly taken by the executive committee within the course and scope
of its authority and after proper ratification shall be binding
on the company.
(c) The executive committee may be abolished at any time by
the vote of a majority of the whole board of directors, and
during the course of the committee's existence, the membership
thereof may be increased or decreased, and the authority and
duties of the committee changed by the board of directors as it
may deem appropriate. The chairman of the board shall be a member
ex officio and act as the chairman of the executive committee.
SECTION 9: (a) The board of directors, at its discretion,
may constitute and appoint special committees, in addition to the
executive committee, to assist in the supervision, management,
and control of the affairs of the company, with responsibilities
and powers appropriate to the nature of the several committees
and as provided by the board of directors in the resolution of
appointment or in subsequent resolutions and directives. Such
committees may include but are not limited to an audit committee,
a nominating committee, and a compensation committee. Each
committee so constituted and appointed by the board shall serve
at the pleasure of the board and the members thereof shall
include not less than three members of the board of directors,
and such further persons as the board may designate.
(b) In addition to such obligations and functions as may be
expressly provided for by the board of directors, each committee
so constituted and appointed by the board shall from time to time
report to and advise the board on company affairs within its
particular area of responsibility and interest.
(c) The board of directors may provide by general
resolution applicable to such special committees for the
organization and conduct of the business of the committees.
ARTICLE VI
Officers and Assistant Officers
SECTION 1: The officers of the company shall be a chairman
of the board of directors, hereinafter called the "chairman of
the board," a president, one or more vice-presidents, a secretary
and a treasurer. Such officers shall be elected at the first
meeting of the board of directors after the annual meeting of the
stockholders in each year but if not elected at such meeting may
be elected at any other meeting of the board of directors. All
officers shall hold their respective offices from the date of
election thereto until the first meeting of the board of
directors after the next annual meeting of the stockholders, or
until their successors shall have been elected, but all or any of
the officers of the company may be removed from their respective
offices at the pleasure of the board of directors. The board of
directors may also at any time elect such other officers and
assistant officers as it may deem proper and may prescribe their
duties and authority. The chairman of the board, the president,
and at least one vice-president shall be directors. Whenever
there is more than one vice-president the board of directors may
designate one or more executive vice-presidents or senior
vice-presidents or both and assign to them such responsibilities
as may be appropriate. Any two or more offices may be held by
the same person except that neither the chairman of the board nor
the president shall hold the office of secretary.
SECTION 2: The chairman of the board shall preside at all
meetings of the stockholders and of the board of directors at
which he is present. If designated the chief executive officer
of the company by the board of directors, the chairman of the
board shall exercise general supervision and direction over the
conduct of the business and affairs of the corporation, shall
have the power to appoint counsel for the corporation and to
appoint such subordinate officers (other than those officers
required by Article VI of these by-laws to be elected by the
board of directors), agents, clerks and employees as may be found
necessary to transact the business of the corporation and,
without the consent of the board of directors, to remove any such
appointive officer, agent, clerk or employee of the corporation.
The chairman of the board shall have such other powers and
perform such other duties as may from time to time be prescribed
by the board of directors.
SECTION 3: The president shall, in the absence of the
chairman of the board, preside at all meetings of the
stockholders and of the board of directors at which he is
present. If designated the chief executive officer of the
company by the board of directors, the president shall exercise
the powers granted to the chief executive officer as described in
Section 2 and shall have such other powers and perform such other
duties as may from time to time be prescribed by the board of
directors or as may be determined by agreement between the
chairman of the board and the president. In case of the absence
or disability of the chairman of the board, or his refusal to
act, the president shall have the powers and perform the duties
of the chairman of the board.
SECTION 4: The vice-presidents shall have such powers and
duties as may from time to time be prescribed by the board of
directors or by the chief executive officer in accordance with
these by-laws. The board of directors may designate one or more
executive vice-presidents or senior vice-presidents or both such
executive and senior vice-presidents and may prescribe the powers
and duties of each. In case of absence, disability or refusal to
act on the part of both the chairman of the board and the
president, one of the executive vice-presidents or senior
vice-presidents designated by the board of directors shall have
the powers and perform the duties of the chief executive officer
during such period of absence, disability or refusal to act.
SECTION 5: The secretary shall keep minutes of all meetings
of the stockholders, the board of directors and the committees of
the board, if any, shall give the required notices of all such
meetings, shall notify all officers and directors of their
election and shall keep the seal of the company and affix the
same, attested by his signature, to such instruments as may
require it. The secretary shall keep or cause to be kept the
stock certificate book and the other usual corporate records. He
shall make such reports to the board of directors as they may
request.
SECTION 6: The board of directors may designate a
vice-president as the chief financial officer of the company in
which event that officer shall have all the powers and duties of
the treasurer except those prescribed by the board or delegated
by the chief financial officer to be performed by the treasurer.
In the absence of such a designation, the treasurer shall be the
chief financial officer of the company. The chief financial
officer shall have custody of and be responsible for all moneys,
deposits and securities of the company, for keeping full and
accurate records of transactions, accounts, liabilities and
financial condition, for authorizing signatures on bank and other
accounts, authorizing endorsers on checks, bills, notes and other
negotiable and non-negotiable instruments, for arranging for
borrowing and lending, procuring insurance, managing cash flow
and investments, and shall generally, together with the chief
executive officer, have supervision of the finances of the
company. His books and accounts shall be open at all times to
inspection by any director and, at appropriate times, by the
company's auditors. The chief financial officer shall make a
report of the financial condition of the company for the annual
meeting of stockholders in each year and shall make such other
reports and statements as may from time to time be required by
the board of directors or by the laws of the State of Delaware.
SECTION 7: Contracts and other written instruments shall be
signed by the chairman of the board or the president or a
vice-president unless some other officer or employee of the
company is authorized or required to sign them. The chairman of
the board or the president or any vice-president or any other
officer, assistant officer or employee designated in writing by
the chief financial officer, may sign or endorse checks, drafts
and other instruments used in the ordinary course of the
business.
SECTION 8: The duties of assistant officers, such as
assistant secretaries or assistant treasurers, shall be
determined from time to time by the board of directors or,
subject to such action as the board of directors may take in
respect thereto, by the chief executive officer.
ARTICLE VII
Fiscal Year
The fiscal year of the company shall be the calendar year.
ARTICLE VIII
Indemnification
SECTION 1: Indemnification of Directors and Officers. The
company shall, to the fullest extent to which it is empowered to
do so by the General Corporation Law of Delaware or any other
applicable laws, as may from time to time be in effect, indemnify
any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was or has
agreed to become a director or officer of the company, or is or
was serving or has agreed to serve at the request of the company
as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise, against all 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. Expenses incurred in
defending any action, suit or proceeding, whether civil,
criminal, administrative or investigative, shall be paid by the
company in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of
the director or officer to repay if it shall ultimately be
determined that he is not entitled to be indemnified by the
company. Any indemnification of or advance of expenses to a
director or officer under this Section 1 of this Article shall be
made promptly upon the written request of the director or
officer. If a determination by the company that the director or
officer is entitled to indemnification pursuant to this Article
is required by law and the company fails to respond within 60
days to a written request for indemnity, the company shall be
deemed to have approved such request. If the company denies a
written request for indemnity or advancement of expenses, in
whole or in part, or if payment in full pursuant to such request
is not made within 60 days, the right to indemnification or
advances as granted by this Article shall be enforceable by the
director or officer in any court of competent jurisdiction. The
costs and expenses of such person incurred in connection with
successfully establishing his right to indemnification or
advancement, in whole or in part, in any such action shall also
be indemnified by the company. If the company raises as a
defense to any such action for indemnification that the claimant
has not met any applicable standard of conduct, the burden of
proving such defense shall be on the company, whether or not
there has been an actual determination by the company (including
a determination by its board of directors, its independent legal
counsel, or its stockholders) that the claimant has not met such
applicable standard of conduct.
SECTION 2: Contract with the Company. The provisions of
Section 1 of this Article VIII shall be deemed to be a contract
between the company and each director or officer who serves in
any such capacity at any time while said Section 1 is in effect,
and any repeal or modification of said Section 1 shall not affect
any rights or obligations then existing with respect to any state
of facts then or theretofore existing or any action, suit or
proceeding theretofore or thereafter brought or threatened based
in whole or in part upon any such state of facts. The contract
right provided hereunder to each director and officer may not be
modified retroactively without the consent of such person.
SECTION 3: Indemnification of Employees and Agents.
Persons who are not covered by the foregoing provisions of this
Article VIII and who are or were employees or agents of the
company, or are or were serving at the request of the company as
employees or agents of another corporation, partnership, joint
venture, trust or other enterprise, may be indemnified to the
extent the company is empowered to do so by the General
Corporation Law of Delaware or any other applicable laws, when
and as authorized at any time or from time to time by the board
of directors in its sole discretion.
SECTION 4: Other Rights of Indemnification. The
indemnification provided or permitted by this Article VIII shall
not be deemed exclusive of any other rights to which those
indemnified may be entitled by law or otherwise, and shall
continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such person.
SECTION 5: Liability Insurance. The company shall have the
power to purchase and maintain insurance on behalf of any person
who is or was a director, officer, employee or agent of the
company or is or was serving at the request of the company as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any
liability asserted against him and incurred by him in any such
capacity or arising out of his status as such whether or not the
company would have the power to indemnify him against such
liability under the provisions of this Article VIII.
ARTICLE IX
SECTION 1: The Company may, to the fullest extent to which
it is empowered to do so by the General Corporation Law of
Delaware or any other applicable laws as may from time to time be
in effect, contract or transact business between itself and any
other organization in which one or more of its officers or
directors are officers or directors or have a financial interest
if the officer's or director's interest or relationship to the
contract or transaction is disclosed or is known to the board of
directors.
SECTION 2: The board of directors shall fix the
compensation of the directors.
ARTICLE X
Amendments
These by-laws may be altered, amended or repealed and new
by-laws may be adopted by action of the board of directors.
ARTICLE XI
Acquisition, Merger or Consolidation
In any instance in which the board of directors is
considering the terms of any offer that would involve the
acquisition by the offeror of a controlling interest in the
company or a merger or consolidation of the company with or the
sale of its assets to another company, the board shall consider,
in addition to the economic interests of the stockholders, all
relevant factors, including:
1. The social and economic impact upon the employees of
the company;
2. The economic and environmental impact upon the
communities in which the company's major facilities are
located;
3. The continuing ability of the company to meet the needs
of its customers and clients and to fulfill its existing
contractual commitments; and
4. The preservation of engineering integrity required to
provide adequate safeguards to society with respect to the
structural adequacy of the structures that the company
designs, fabricates and builds.
EXHIBIT 4.1
TABLE OF CONTENTS
Parties
Recitals of the Company
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions
Act
Affiliate
Authentication Agent
Authorized Newspaper
Board of Directors
Board Resolution
Business Day
Capitalized Rent
Commission
Company
Company Request and Company Order
Consolidated Current Liabilities
Consolidated Net Tangible Assets
Consolidated Tangible Assets
Corporate Trust Office
corporation
Defaulted Interest
Defeasance
Defeasible Series
Depositary
Event of Default
Funded Debt
Global Security
Holder
Indenture
Interest
Interest Payment Date
Maturity
Officers' Certificate
Opinion of Counsel
Original Issue Discount Security
Outstanding
Paying Agent
Periodic Offering
Person
Place of Payment
Predecessor Security
Principal Property
Redemption Date
Redemption Price
Regular Record Date
Repayment Date
Repayment Price
Responsible Officer
Restricted Subsidiary
Secured Debt
Security Register and Security Registrar
Special Record Date
Stated Maturity
Subsidiary
Trustee
Trust Indenture Act
Unrestricted Subsidiary
U.S. Government Obligations
U.S. Person
Voting Stock
SECTION 102. Compliance Certificates and Opinions
SECTION 103. Form of Documents Delivered to Trustee
SECTION 104. Acts of Holders
SECTION 105. Notices etc., to Trustee and Company
SECTION 106. Notices to Holders; Waiver
SECTION 107. Conflict with Trust Indenture Act
SECTION 108. Effect of Headings and Table of
Contents
SECTION 109. Successors and Assigns
SECTION 110. Separability Clause
SECTION 111. Benefits of Indenture
SECTION 112. Governing Law
SECTION 113. Legal Holidays
SECTION 114. Execution in Counterparts
SECTION 115. No Security Interest Created
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally
SECTION 202. Forms of Securities
SECTION 203. Form of Trustee's Certificate of
Authentication
SECTION 204. Form of Legend for Global Securities
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms
SECTION 302. Denominations
SECTION 303. Execution, Authentication, Dating and
Delivery
SECTION 304. Temporary Securities
SECTION 305. Registration, Transfer and Exchange
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities
SECTION 307. Payment of Interest; Interest Rights
Preserved
SECTION 308. Persons Deemed Owners
SECTION 309. Cancellation
ARTICLE FOUR
REDEMPTION OF SECURITIES; SINKING FUNDS
SECTION 401. Applicability of Article
SECTION 402. Election to Redeem; Notice to Trustee
SECTION 403. Selection by Trustee of Securities to Be
Redeemed
SECTION 404. Notice of Redemption
SECTION 405. Deposit of Redemption Price
SECTION 406. Securities Payable on Redemption Date
SECTION 407. Securities Redeemed in Part
SECTION 408. Provisions with Respect to any Sinking
Funds
ARTICLE FIVE
SATISFACTION AND DISCHARGE
SECTION 501. Satisfaction and Discharge of
Indenture
SECTION 502. Application of Trust Money
ARTICLE SIX
REMEDIES
SECTION 601. Events of Default
SECTION 602. Acceleration of Maturity; Rescission and
Annulment
SECTION 603. Collection of Indebtedness and
Suits for Enforcement by Trustee
SECTION 604. Trustee May File Proofs of Claim
SECTION 605. Trustee May Enforce Claims without
Possession of Securities
SECTION 606. Application of Money Collected
SECTION 607. Limitation on Suits
SECTION 608. Unconditional Right of Holders to
Receive Principal, Premium and Interest
SECTION 609. Restoration of Rights and Remedies
SECTION 610. Rights and Remedies Cumulative
SECTION 611. Delay or Omission Not Waiver
SECTION 612. Control by Holders
SECTION 613. Waiver of Past Defaults
SECTION 614. Undertaking for Costs
ARTICLE SEVEN
THE TRUSTEE
SECTION 701. Certain Duties and Responsibilities
SECTION 702. Notice of Defaults
SECTION 703. Certain Rights of Trustee
SECTION 704. Not Responsible for Recitals or Issuance
of Securities
SECTION 705. May Hold Securities
SECTION 706. Money Held in Trust
SECTION 707. Compensation and Reimbursement
SECTION 708. Disqualification; Conflicting
Interests
SECTION 709. Trustee Required; Eligibility
SECTION 710. Resignation and Removal; Appointment of
Successor
SECTION 711. Acceptance of Appointment by Successor
SECTION 712. Merger, Conversion, Consolidation or
Succession to Business
SECTION 713. Preferential Collection of Claims
against Company
SECTION 714. Authenticating Agents
ARTICLE EIGHT
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 801. Company to Furnish Trustee
Names and Addresses of Holders
SECTION 802. Preservation of Information;
Communications to Holders
SECTION 803. Reports by Trustee
SECTION 804. Reports by Company
SECTION 805. Reports by Security Registrar
ARTICLE NINE
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 901. Company May Consolidate, etc., Only on
Certain Terms
SECTION 902. Successor Corporation Substituted
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 1001. Supplemental Indentures Without Consent
of Holders
SECTION 1002. Supplemental Indentures with Consent of
Holders
SECTION 1003. Execution of Supplemental Indentures
SECTION 1004. Effect of Supplemental Indentures
SECTION 1005. Conformity with Trust Indenture Act
SECTION 1006. Reference in Securities to Supplemental
Indentures
ARTICLE ELEVEN
COVENANTS
SECTION 1101. Payment of Principal, Premium and
Interest
SECTION 1102. Maintenance of Office or Agency
SECTION 1103. Money for Security Payments to be Held
in Trust
SECTION 1104. Limitation on Liens
SECTION 1105. Sale and Leaseback Transactions
SECTION 1106. Annual Statement
SECTION 1107. Waiver of Certain Covenants
ARTICLE TWELVE
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1201. Purposes of Meetings
SECTION 1202. Call of Meetings by Trustee
SECTION 1203. Call of Meetings by Company or Holders
SECTION 1204. Qualifications for Voting
SECTION 1205. Quorum; Adjourned Meetings
SECTION 1206. Regulations
SECTION 1207. Voting Procedure
SECTION 1208. Written Consent in Lieu of Meetings
SECTION 1209. No Delay of Rights by Meeting
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Company's Option to Effect Defeasance or
Covenant Defeasance
SECTION 1302. Defeasance and Discharge
SECTION 1303. Covenant Defeasance
SECTION 1304. Conditions to Defeasance of Covenant
Defeasance
SECTION 1305. Deposited Money and U.S. Government
Obligations to be Held in
Trust; Other Miscellaneous Provisions
SECTION 1306. Reinstatement
<PAGE>
<PAGE>
CBI Industries, Inc.
AND
Chemical Bank, Trustee
____________________
Indenture
Dated as of March 1, 1994
____________________
Debt Securities
<PAGE>
<PAGE>
CBI Industries, Inc.
Reconciliation and tie between Indenture
dated as of March 1, 1994
and
Trust Indenture Act of 1939, as amended
Trust Indenture Act Section Indenture Section
Section 310(a)(1) 709
(a)(2) 709
(a)(3) Not Applicable
(a)(4) Not Applicable
(a)(5) 709
(b) 708, 710
(c) Not Applicable
Section 311(a) 713(a)
(b) 713(b)
(b)(2) 803(a)(3), 803(b)
(c) Not Applicable
Section 312(a) 801, 802(a)
(b) 802(b)
(c) 802(c)
Section 313(a) 803(a)
(b) 803(b)
(c) 803(a), 803(b)
(d) 803(c)
Section 314(a) 804, 1106
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
Section 315(a) 701(a)
(b) 702, 803(a)
(c) 701(b)
(d) 701(c)
(d)(1) 701(a)(1)
(d)(2) 701(c)(2)
(d)(3) 701(c)(3)
(e) 614
Section 316(a) 101
(a)(1)(A) 612
(a)(1)(B) 602, 613
(a)(2) Not Applicable
(b) 608
Section 317(a)(1) 603
(a)(2) 604
(b) 1103
Section 318(a) 107
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Indenture.
<PAGE>
<PAGE>
INDENTURE dated as of March 1, 1994, between CBI INDUSTRIES,
INC., a Delaware corporation (hereinafter called the "Company"),
having an office at 800 Jorie Boulevard, Oak Brook, Illinois
60521, and CHEMICAL BANK, a corporation organized under the laws
of the State of New York, having its Corporate Trust Office at
450 West 33rd Street, 15th Floor, New York, New York 10001, as
trustee (hereinafter called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery
of this Indenture to provide for the issue from time to time of
its unsecured debentures, notes, bonds or other evidences of
indebtedness to be issued in one or more series (such debt
securities of the Company, irrespective of designated maturity,
are hereinafter called the "Securities") as in this Indenture
provided, up to such principal amount or amounts as may from time
to time be authorized in or pursuant to one or more resolutions
of the Board of Directors.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been
done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase or
acceptance of the Securities by the Holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate
benefit of the respective Holders from time to time of the
Securities or of any series thereof as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as
well as the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally
accepted accounting principles in the United States of
America and, except as otherwise herein expressly provided,
the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder
shall mean such accounting principles as are generally
accepted at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other
subdivision.
Certain terms used principally in Article Seven are defined
in that Article.
"Act" when used with respect to any Holder has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person.
For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Authentication Agent" means any agent or agents of the
Trustee which at the time shall be appointed and acting pursuant
to Section 714.
"Authorized Newspaper" means a newspaper of general
circulation, in the official language of the country of
publication or in the English language, customarily published on
each Business Day whether or not published on Saturdays, Sundays
or holidays, and of general circulation in the place in
connection with which the term is used or in the financial
community of such place. Whenever successive publications in an
Authorized Newspaper are required hereunder they may be made
(unless otherwise expressly provided herein) on any Business Day
and in the same or different Authorized Newspapers.
"Board of Directors" means either the Board of Directors of
the Company or any duly authorized committee of that Board.
"Board Resolution" means a copy of a resolution certified by
the Chairman of the Board, Vice Chairman of the Board, President,
a Vice President, the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day", when used with respect to any Place of
Payment or any other particular location referred to in this
Indenture or in the Securities, means, unless otherwise specified
with respect to any series of Securities pursuant to Section 301,
each Monday, Tuesday, Wednesday, Thursday and Friday which is not
a day on which banking institutions in that Place of Payment or
particular location are authorized or obligated by law,
regulation or executive order to close.
"Capitalized Rent" means, as calculated by the Company, the
total net amount of rent payable for the remaining term as of the
date of determination thereof under a lease of Principal Property
by the Company or any of its Restricted Subsidiaries, discounted
from the respective due dates thereof to such date at the rate
per annum equal to the weighted average interest rate borne by
the Securities. The weighted average interest rate borne by the
Securities shall be calculated by dividing the aggregate of the
annual interest payments required on the Securities, based on the
amount Outstanding at the latest date any Securities were issued
hereunder, by the aggregate principal amount of the Securities
Outstanding at such date. In the case of an Original Issue
Discount Security, the amount Outstanding shall be deemed to be
the entire principal thereof and the annual interest payments
shall be deemed to be the product obtained by multiplying such
entire principal amount by the rate of interest payable on
overdue principal. The total net amount of rent payable under
any such lease for any period shall be the total amount of the
rent payable by the lessee with respect to such period but shall
not include amounts required to be paid on account of maintenance
and repairs, insurance, taxes, assessments, water rates, sewer
rents and similar charges and contingent rents such as those
based on sales. The remaining term under any lease shall be
calculated without giving effect to any unexercised option of the
lessee for the renewal or extension of any term. In the case of
any lease which is terminable by the lessee upon the payment of a
penalty, such net amount shall also include the amount of such
penalty, but no rent shall be considered as required to be paid
under such lease subsequent to the first date upon which it may
be so terminated.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Securities
Exchange Act of 1934, or, if at any time after the execution of
this instrument such Commission is not existing and performing
the duties now assigned to it, then the body performing such
duties on such date.
"Company" means the Person named as the "Company" in the
first paragraph of this Indenture unless and until a successor
corporation shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation or any such successor to such a
successor.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by its
Chairman of the Board, Vice Chairman of the Board, President or a
Vice President and by another Vice President, its Treasurer, its
Secretary, an Assistant Secretary or an Assistant Treasurer, and
delivered to the Trustee.
"Consolidated Current Liabilities" means the aggregate of
the current liabilities of the Company and its Restricted
Subsidiaries (excluding liabilities of Unrestricted Subsidiaries)
appearing on the most recent available consolidated balance sheet
of the Company and its Restricted Subsidiaries, all in accordance
with generally accepted accounting principles; provided, however,
that in no event shall Consolidated Current Liabilities include
any obligation of the Company and its Restricted Subsidiaries
issued under a revolving credit or similar agreement if the
obligation issued under such agreement matures by its terms
within 12 months from the date thereof but by the terms of such
agreement such obligation may be renewed or extended or the
amount thereof reborrowed or refunded at the option of the
Company or any Restricted Subsidiary for a term in excess of 12
months from the date of determination.
"Consolidated Net Tangible Assets" means Consolidated
Tangible Assets after deduction of Consolidated Current
Liabilities.
"Consolidated Tangible Assets" means the aggregate of all
assets of the Company and its Restricted Subsidiaries (including
the value of all existing Sale and Leaseback Transactions (as
defined in Section 1105) and any assets resulting from the
capitalization of other long-term lease obligations in accordance
with generally accepted accounting principles but excluding the
value of assets or investment in any Unrestricted Subsidiary or
any non-majority-owned subsidiary) appearing on the most recent
available consolidated balance sheet of the Company and its
Restricted Subsidiaries at their net book values, after deducting
related depreciation, amortization and other valuation reserves
and excluding (a) any capital write-ups resulting from
reappraisals of assets or of other investments after March 1,
1994 (other than a write-up of any assets constituting part of
the assets and business of another corporation made in connection
with the acquisition, direct or indirect, of the assets and
business of such other corporation) except as permitted in
accordance with generally accepted accounting principles, (b)
treasury stock, (c) patent and trademark rights, good will,
unamortized discounts and expenses and any other intangible
items, all in accordance with generally accepted accounting
principles.
"Corporate Trust Office" means an office of the Trustee at
which at any particular time its corporate trust business shall
be administered, which office at the date of execution and
delivery of this Indenture is located at 450 West 33rd Street,
15th Floor, New York, New York 10001, Attn: Corporate Trust
Administration, Telephone 212-971-3347, Telecopy 212-613-7682, or
such other address as the Trustee may notify the Company and the
Holders from time to time.
"corporation" includes any corporation, limited liability
company, association, company, joint-stock company or business
trust.
"Defaulted Interest" has the meaning specified in Section
307.
"Defeasance" has the meaning specified in Section 1302.
"Defeasible Series" has the meaning specified in Section
1301.
"Depositary" means, with respect to Securities of any series
issuable in whole or in part in the form of one or more Global
Securities, a clearing agency registered under the Securities
Exchange Act of 1934, as amended, that is designated to act as
Depositary for such Securities as contemplated by Section 301.
"Dollar or $" means a dollar or other equivalent unit in
such coin or currency of the United States of America as at the
time shall be legal tender for the payment of public and private
debts.
"Event of Default" has the meaning specified in Section 601.
"Funded Debt" means all indebtedness for money borrowed
having a maturity of more than twelve months from the date of the
most recent consolidated balance sheet of the Company and its
Restricted Subsidiaries (excluding indebtedness of Unrestricted
Subsidiaries) or renewable and extendible beyond twelve months at
the option of the borrower and all obligations in respect of
lease rentals which under generally accepted accounting
principles would be shown on a consolidated balance sheet of the
Company as a liability item other than a current liability;
provided, however, that Funded Debt shall not include any of the
foregoing to the extent that such indebtedness or obligations are
not required by generally accepted accounting principles to be
shown on the balance sheet of the Company.
"Global Security" means a Security that evidences all or
part of the Securities of any series and is authenticated and
delivered to, and registered in the name of, the Depositary for
such Securities or a nominee thereof.
"Holder" means any Person in whose name a Security of any
series is registered in the Security Register applicable to
Securities of such series.
"Indenture" means this instrument as originally executed or
as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof. The term "Indenture" shall also
include the terms of particular series of Securities established
as contemplated by Section 301.
"Indexed Security" means a Security the terms of which
provide that the principal amount thereof payable at Stated
Maturity may be more or less than the principal face amount
thereof at original issuance.
"Interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after
maturity, means interest payable after maturity.
"Interest Payment Date", when used with respect to any
series of Securities, means the Stated Maturity of an installment
of interest on such Securities.
"Maturity", when used with respect to any Security, means
the date on which the principal of such Security becomes due and
payable as therein or herein provided, whether on a Repayment
Date, at the Stated Maturity or by declaration of acceleration,
call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, Vice Chairman of the Board, President or a
Vice President and by another Vice President, the Treasurer, the
Secretary, or an Assistant Treasurer or Assistant Secretary of
the Company, and delivered to the Trustee. Each such certificate
shall contain the statements set forth in Section 102 if and to
the extent required by the provisions of such Section.
"Opinion of Counsel" means a written opinion of counsel, who
may be an employee of or counsel to the Company or who may be
other counsel satisfactory to the Trustee. Each such opinion
shall contain the statements set forth in Section 102 if and to
the extent required by the provisions of such Section.
"Original Issue Discount Security" means any Security which
by its terms provides for an amount less than the principal
amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof.
"Outstanding", when used with respect to Securities or
Securities of any series, means, as of the date of determination,
all such Securities theretofore authenticated and delivered under
this Indenture, except:
(i) such Securities theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation;
(ii) such Securities for whose payment or redemption
money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying
Agent) for the Holders of such Securities; provided,
however, that if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee
has been made;
(iii) Securities as to which Defeasance has
been effected pursuant to Section 1302; and
(iv) such Securities in exchange for or in lieu of
which other such Securities have been authenticated and
delivered pursuant to this Indenture, or such Securities
which have been paid, pursuant to this Indenture, unless
proof satisfactory to the Trustee is presented that any such
Securities are held by Persons in whose hands any of such
Securities are a legal, valid and binding obligation of the
Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of such Outstanding Securities have
given any request, demand, authorization, direction, notice,
consent or waiver hereunder or are present at a meeting of
Holders of Securities for quorum purposes, (A) the principal
amount of an Original Issue Discount Security that shall be
deemed to be Outstanding shall be the amount of the principal
thereof that would be due and payable as of the date of such
determination upon acceleration of the Maturity thereof pursuant
to Section 602, (B) the principal amount of any Indexed Security
that shall be deemed to be Outstanding shall be the principal
face amount of such Indexed Security at original issuance unless
otherwise provided with respect to such Security pursuant to
Section 301, and (C) such Securities owned by the Company or such
other obligor upon such Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not
to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only
such Securities which the Trustee knows to be so owned shall be
so disregarded. Such Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the
pledgee is not the Company or any other such obligor upon such
Securities or any Affiliate of the Company or such other obligor.
Upon request of the Trustee, the Company shall furnish to the
Trustee promptly an Officers' Certificate listing and identifying
all such Securities, if any, known by the Company to be owned or
held by or for the account of any of the above-described Persons;
and, subject to the provisions of Section 701, the Trustee shall
be entitled to accept and rely upon such Officers' Certificate as
conclusive evidence of the facts therein set forth and of the
fact that all such Securities not listed therein are Outstanding
for the purpose of any such determination.
"Paying Agent" means any Person authorized by the Company to
pay the principal of, premium, if any, or interest on any
Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a
series from time to time the specific terms of which Securities,
including, without limitation, the rate or rates of interest or
formula for determining the rate or rates of interest thereon, if
any, the Stated Maturity or Stated Maturities thereof, the
original issue date or dates thereof, the redemption provisions,
if any, with respect thereto, and any other terms specified as
contemplated by Section 301 with respect thereto, are to be
determined by the Company upon the issuance of such Securities.
"Person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities
of any series, means the place or places where the principal of
(and premium, if any) and interest on the Securities of that
series are payable as specified as contemplated by Section 301.
"Predecessor Security" of any particular Security means
every previous Security evidencing all or a portion of the same
debt as that evidenced by such particular Security, and for the
purposes of this definition, any Security authenticated and
delivered under Section 306 in lieu of a mutilated, lost,
destroyed or stolen Security shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Security.
"Principal Property" means any manufacturing plant or other
facility of the Company or any Restricted Subsidiary, whether now
owned or hereafter acquired, which, in the opinion of the Board
of Directors, is of material importance to the business conducted
by the Company and its Restricted Subsidiaries as a whole.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security
to be redeemed, means the price specified in such Security at
which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any
Security on any Interest Payment Date means the date, if any,
specified in such Security as the "Regular Record Date".
"Repayment Date", when used with respect to any Security to
be repaid, means the date fixed for such repayment pursuant to
such Security.
"Repayment Price", when used with respect to any Security to
be repaid, means the price at which it is to be repaid pursuant
to such Security.
"Responsible Officer", when used with respect to the
Trustee, means the chairman or any vice-chairman of the board of
directors, the chairman or any vice-chairman of the executive
committee of the board of directors, the president, any vice
president or assistant vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or any
assistant trust officer, the controller or any assistant
controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the
above designated officers and also means, with respect to any
particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity
with the particular subject.
"Restricted Subsidiary" means (a) any Subsidiary other than
an Unrestricted Subsidiary and (b) any Subsidiary which was an
Unrestricted Subsidiary but which, subsequent to March 1, 1994,
is designated by the Company (by or pursuant to Board Resolution)
to be a Restricted Subsidiary, provided, however, that the
Company may not designate any such Subsidiary to be a Restricted
Subsidiary if the Company would thereby breach any covenant or
agreement herein contained (on the assumptions that any
outstanding Secured Debt of such Subsidiary was incurred at the
time of such designation and that any Sale and Leaseback
Transaction (as defined in Section 1105) to which such Subsidiary
is then a party was entered into at the time of such
designation).
"Secured Debt" means indebtedness for money borrowed and any
Funded Debt which is secured by a mortgage, pledge, lien,
security interest or encumbrance on (a) any Principal Property of
the Company or a Restricted Subsidiary or on (b) any shares of
capital stock or indebtedness of any Restricted Subsidiary.
"Security Register" and "Security Registrar" have the
meanings specified in Sections 305 and 1102, respectively.
"Special Record Date" for the payment of any Defaulted
Interest (as defined in Section 307) means a date fixed by the
Trustee pursuant to Section 307.
"Stated Maturity" when used with respect to any Security or
any installment of interest thereon, means the date specified in
such Security as the fixed date on which the principal of such
Security, or such installment of interest is due and payable.
"Subsidiary" means any corporation a majority of the Voting
Stock of which is at the time owned directly or indirectly by the
Company or one or more of its other subsidiaries or by the
Company and one or more of its other Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this Indenture until a successor Trustee shall
have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean such successor
Trustee or any such successor to such a successor Trustee. If
pursuant to the provisions of this Indenture there shall be at
any time more than one Trustee hereunder, the term "Trustee" as
used with respect to Securities of any series shall mean the
Trustee with respect to Securities of that series.
"Trust Indenture Act" or "TIA" means, subject to Sections
1001(6) and 1005, the Trust Indenture Act of 1939, as amended,
and as in force at the date as of which this Indenture was
executed.
"Unrestricted Subsidiary" means (a) any Subsidiary acquired
or organized after March 1, 1994, provided, however, that such
Subsidiary shall not be a successor, directly or indirectly, to
any Restricted Subsidiary; (b) any Subsidiary whose principal
business or assets are located outside the United States of
America, its territories and possessions, Puerto Rico or Canada;
(c) any Subsidiary the principal business of which consists of
financing or assisting in financing of customer construction
projects or the acquisition or disposition of products by
dealers, distributors or other customers; (d) any Subsidiary
engaged in the insurance business or whose principal business is
the ownership, leasing, purchasing, selling or development of
real property; and (e) any Subsidiary substantially all the
assets of which consist of stock or other securities of a
Subsidiary or Subsidiaries of a character described in clauses
(a) through (d) of this paragraph; unless and until any such
Subsidiary shall have been designated to be a Restricted
Subsidiary pursuant to clause (b) of the definition of
"Restricted Subsidiary".
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the
payment of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting as
an agency or instrumentality of the United States of America, the
payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in
either case under clauses (i) or (ii) are not callable or
redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act of 1933, as amended) as
custodian with respect to any such U.S. Government Obligation or
a specific payment of interest on or principal of any such U.S.
Government Obligation held by such custodian for the account of
the holder of a depository receipt, provided that (except as
required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment
of principal of or interest on the U.S. Government Obligation
evidenced by such depository receipt.
"U.S. Person" means, unless otherwise specified with respect
to the Securities of any series as contemplated by Section 301, a
citizen, national or resident of the United States, a
corporation, partnership or other entity created or organized in
or under the laws of the United States or any political
subdivision thereof, or an estate or trust the income of which is
subject to United States federal income taxation regardless of
its source.
"Voting Stock" means outstanding shares of capital stock
having under ordinary circumstances (not dependent on the
happening of a contingency) voting power for the election of
directors.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture,
the Company shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act. Each
such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by officers of the Company,
or an Opinion of Counsel, if to be given by counsel, and shall
comply with the requirements of the Trust Indenture Act and any
other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture shall
include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition
and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as
is necessary to enable him to express an informed opinion as
to whether such covenant or condition has been complied
with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been
complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be
so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such
Person or Persons may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless
such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with
respect to the matters upon which his certificate or opinion is
based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect
to such factual matters is in the possession of the Company,
unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but
need not, be consolidated and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be
given or taken by Holders or Holders of Securities of any series
may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing or by the record of the
Holders of Securities voting in favor thereof at any meeting of
such Holders duly called and held in accordance with the
provisions of Article Twelve; and, except as herein otherwise
expressly provided, such action shall become effective when such
instrument or instruments or any such record are delivered to the
Trustee, and where it is hereby expressly required, to the
Company. Such instrument or instruments or such record (and the
action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such
instrument or instruments or voting at such meeting. Proof of
execution of any such instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 701) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section.
The record of any meeting of Holders of Securities shall be
proved in the manner provided in Article Twelve and the record so
proved shall be sufficient for any purpose of this Indenture and
(subject to Section 701) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary public
or other officer authorized by law to take acknowledgements of
deeds, certifying that the individual signing such instrument or
writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date
of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in
any other manner that the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the
Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security
shall bind every future Holder of the same Security and the
Holder of every Security issued upon the transfer thereof or in
exchange therefor or in lieu thereof, in respect of any thing
done or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made
upon such Security.
(e) The Company may, in the circumstances permitted by the
Trust Indenture Act, fix any day as the record date for the
purpose of determining the Holders of Securities of any series
entitled to give or take any request, demand, authorization,
direction, notice, consent, waiver or other action, or to vote on
any action, authorized or permitted to be given or taken by
Holders of Securities of such action, authorized or permitted to
be given or taken by Holders of Securities of such series. If
not set by the Company prior to the first solicitation of a
Holder of Securities of such series made by any Person in respect
of any such actions, or, in the case of any such vote, prior to
such vote, the record date for any such action or vote shall be
the 30th day (or, if later, the date of the most recent list of
Holders required to be provided pursuant to Section 801) prior to
such first solicitation or vote, as the case may be. With regard
to any record date for action to be taken by the Holders of one
or more series of Securities, only the Holders of Securities of
such series on such date (or their duly designated proxies) shall
be entitled to give or take, or vote on, the relevant action.
With regard to any record date set pursuant to this paragraph,
the Holders of Outstanding Securities of the relevant series on
such record date (or their duly appointed agents), and only such
Persons, shall be entitled to give or take the relevant action,
whether or not such Holders remain Holders after such record
date. With regard to any action that may be given or taken
hereunder only by Holders of a requisite principal amount of
Outstanding Securities of any series (or their duly appointed
agents) and for which a record date is set pursuant to this
paragraph, the Company may, at its option, set an expiration date
after which no such action purported to be given or taken by any
Holder shall be effective hereunder unless given or taken on or
prior to such expiration date by Holders of the requisite
principal amount of Outstanding Securities of such series on such
record date (or their duly appointed agents). On or prior to any
expiration date set pursuant to this paragraph, the Company may,
on one or more occasions at its option, extend such date to any
later date. Nothing in this paragraph shall prevent any Holder
(or any duly appointed agent thereof) from giving or taking,
after any expiration date, any action identical to, or, at any
time, contrary to or different from, any action given or taken,
or purported to have been given or taken, hereunder by a Holder
on or prior to such date, in which event the Company may set a
record date in respect thereof pursuant to this paragraph.
Notwithstanding the foregoing or the Trust Indenture Act, the
Company shall not set a record date for, and the provisions of
this paragraph shall not apply with respect to, any action to be
given or taken by Holders pursuant to Sections 601, 602 or 612.
(f) Without limiting the foregoing, a Holder entitled
hereunder to give or take any action hereunder with regard to any
particular Security may do so with regard to all or any part of
the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such
appointment with regard to all or any different part of such
principal amount.
SECTION 105. Notices etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished
to, or filed with
(1) the Trustee by any Holder or by the Company shall
be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (except as
provided in Section 601(4)) if made, given, furnished or
filed in writing to or with the Company at the address of
its principal office specified in the first paragraph of
this instrument or at any other address previously furnished
in writing to the Trustee by the Company.
SECTION 106. Notices to Holders; Waiver.
Where this Indenture or any Security provides for notice to
Holders of any event, such notice shall be sufficiently given
(unless otherwise herein or in such Securities expressly
provided) if in writing and mailed, first-class postage prepaid,
to each Holder of such Securities, at his address as it appears
on the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such
notice. Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice
by Holders shall be filed with the Trustee, but such filing shall
not be a condition precedent to the validity of any action taken
in reliance upon such waiver. In any case where notice to
Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect
to other Holders, and any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly
given.
In case, by reason of the suspension of regular mail service
as a result of a strike, work stoppage or otherwise, it shall be
impractical to mail notice of any event to the Holders of
Securities when such notice is required to be given pursuant to
any provision of this Indenture, then any manner of giving such
notice as shall be satisfactory to the Trustee and the Company
shall be deemed to be a sufficient giving of such notice.
Any request, demand, authorization, direction, notice,
consent or waiver required or permitted under this Indenture
shall be in the English language, except that any published
notice may be in an official language of the country of
publication.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required or deemed to be
included in this Indenture by any of the provisions of the TIA,
such required or deemed provision of the TIA shall control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience of reference only and shall not
affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities
of any series shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, expressed or
implied, shall give to any Person, other than the parties hereto
and their successors hereunder and the Holders, any benefit or
any legal or equitable right, remedy or claim under this
Indenture.
SECTION 112. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK, EXCEPT AS OTHERWISE REQUIRED BY MANDATORY PROVISIONS OF
LAW.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date or Repayment
Date or Redemption Date or the Maturity of any Security or any
date on which any Defaulted Interest is proposed to be paid shall
not be a Business Day, then (notwithstanding any other provision
of the Securities or this Indenture) payment of interest,
premium, if any, or principal on any Securities need not be made
on such date, but may be made on the next succeeding Business Day
with the same force and effect as if made on the nominal date of
any such Interest Payment Date or Repayment Date or Redemption
Date or Maturity or on the date on which Defaulted Interest is
proposed to be paid, and no interest shall accrue for the period
from and after such nominal date.
SECTION 114. Execution in Counterparts.
This Indenture may be executed in any number of
counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same
instrument.
SECTION 115. No Security Interest Created.
Nothing in this Indenture or in the Securities, expressed or
implied, shall be construed to constitute a security interest
under the Uniform Commercial Code or similar legislation, as now
or hereafter enacted and in effect, in any jurisdiction where
property of the Company or its Subsidiaries is located.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series and the certificates of
authentication thereon shall have such appropriate insertions,
omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements
placed thereon, as may be required to comply with the rules of
any securities exchange, or as may, consistently herewith, be
determined by the officers executing such Securities, as
evidenced by their signing of such Securities. Any portion of
the text of any Security may be set forth on the reverse thereof,
with an appropriate reference thereto on the face of the
Security.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods or may
be produced in any other manner, all as determined by the
officers executing such Securities, as evidenced by their signing
of such Securities.
SECTION 202. Forms of Securities.
The Securities of each series shall be in one of the forms
approved from time to time by or pursuant to a Board Resolution,
or established in one or more indentures supplemental hereto.
Prior to the delivery of such Securities to the Trustee for
authentication in any form approved by or pursuant to a Board
Resolution, the Company shall deliver to the Trustee the Board
Resolution by or pursuant to which such form of Security has been
approved, which Board Resolution shall have attached thereto a
true and correct copy of the form of such Securities which has
been approved by or pursuant thereto, or, if a Board Resolution
authorizes a specific officer or officers to approve a form of
such Securities, a certificate of such officer or officers
approving the form of such Securities attached thereto.
SECTION 203. Form of Trustee's Certificate of
Authentication.
The following is the form of the Certificate of
Authentication of the Trustee to be endorsed on the face of all
Securities substantially as follows:
This is one of the Securities of the series designated
herein issued under the within-mentioned Indenture.
CHEMICAL BANK, as Trustee
By:
Authorized Officer
SECTION 204. Form of Legend for Global Securities.
Any Global Security authenticated and delivered hereunder
may bear any legend required to comply with the requirements of
any Depositary.
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued up to the aggregate principal amount
of Securities from time to time authorized by or pursuant to a
Board Resolution.
The Securities may be issued in one or more series. All
Securities of each series issued under this Indenture shall in
all respects be equally and ratably entitled to the benefits
hereof with respect to such series without preference, priority
or distinction on account of the actual time or times of the
authentication and delivery or Maturity of the Securities of such
series. There shall be established in or pursuant to a Board
Resolution, and set forth, or determined in the manner provided,
in an Officers' Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of
Securities of any series:
(1) the title of the Securities of the series
(which title shall distinguish the Securities of the
series from all other Securities);
(2) any limit upon the aggregate principal amount
of the Securities of the series which may be
authenticated and delivered under this Indenture (which
limit shall not pertain to Securities authenticated and
delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the
series pursuant to Sections 304, 305, 306, 407, or
1006);
(3) the date or dates on which the principal of
the Securities of the series is payable or the method
of determination thereof;
(4) the rate or rates at which the Securities of
the series shall bear interest, if any, or the method
of calculating such rate or rates of interest, the date
or dates from which such interest shall accrue or the
method by which such date or dates shall accrue or the
method by which such date or dates shall be determined,
and the Interest Payment Dates on which any such
interest shall be payable;
(5) the place or places where, subject to the
provisions of Section 1102, the principal of, premium,
if any, and interest, if any, on Securities of the
series shall be payable;
(6) the period of periods within which, the price
or prices at which, and the other terms and conditions
upon which, Securities of the series may be redeemed,
in whole or in part, at the option of the Company and,
if other than as provided in Section 403, the manner in
which the particular Securities of such series (if less
than all Securities of such series are to be redeemed)
are to be selected for redemption;
(7) the obligation, if any, of the Company to
redeem or purchase Securities of the series pursuant to
any sinking fund or analogous provisions or upon the
happening of a specified event or at the option of a
Holder thereof and the period or periods within which,
the price or prices at which, and the other terms and
conditions upon which, Securities of the series shall
be redeemed or purchased, in whole or in part, pursuant
to such obligation, and any provisions for the
remarketing of such Securities;
(8) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which
Securities of the series shall be issuable;
(9) if other than Dollars, the currency or
currencies (including currency units) in which the
principal of, premium, if any, and interest, if any, on
the Securities of the series shall be payable, or in
which the Securities of the series shall be
denominated, the particular provisions applicable
thereto, and whether the Securities of the series may
be satisfied and discharged other than as provided in
Article Five;
(10) if the payments of principal of, premium, if
any, or interest, if any, on the Securities of the
series are to be made, at the election of the Company
or a Holder, in a currency or currencies (including
currency units) other than that in which such
Securities are denominated or designated to be payable,
the currency or currencies (including currency units)
in which such payments are to be made, the terms and
conditions of such payments and the manner in which the
exchange rate with respect to such payments shall be
determined, the particular provisions applicable
thereto, and whether the Securities of the series may
be satisfied and discharged other than as provided in
Article Five;
(11) if the amount of payments of principal of,
premium, if any, and interest, if any, on the
Securities of the series shall be determined with
reference to an index, formula or other method (which
index, formula or method may be based, without
limitation, on a currency or currencies (including
currency units) other than that in which the Securities
of the series are denominated or designated to be
payable), the index, formula or other method by which
such amounts shall be determined;
(12) if other than the principal amount thereof,
the portion of the principal amount of such Securities
of the series which shall be payable upon declaration
of acceleration thereof pursuant to Section 602 or the
method by which such portion shall be determined;
(13) if other than as provided in Section 307, the
Person to whom any interest on any Security of the
series shall be payable, and the extent to which, or
the manner in which (including any certification
requirement and other terms and conditions under
which), any interest payable on a temporary or
permanent Global Security on an Interest Payment Date
will be paid if other than in the manner provided
herein;
(14) provisions, if any, granting special rights
to the Holders of Securities of the series upon the
occurrence of such events as may be specified;
(15) any deletions from, modifications of or
additions to the Events of Default set forth in Section
601 or covenants of the Company set forth in Article
Eleven pertaining to the Securities of the series;
(16) under what circumstances, if any, the Company
will pay additional amounts on the Securities of that
series held by a Person who is not a U.S. Person in
respect of taxes or similar charges withheld or
deducted and, if so, whether the Company will have the
option to redeem such Securities rather than pay such
additional amounts (and the terms of any such option);
(17) the applicability, if any, to the Securities
of or within the series of Article Thirteen or such
other means of defeasance or covenant defeasance as may
be specified for the Securities, and whether, for the
purpose of such defeasance or covenant defeasance, the
term "U.S. Government Obligation" shall include
obligations referred to in the definition of such term
which are not obligations of the United States or an
agency or instrumentality of the United States;
(18) if other than the Trustee, the identity of
the Security Registrar and any Paying Agent;
(19) if and as applicable, that the Securities of
the series shall be issuable in whole or in part in the
form of one or more Global Securities and, in such a
case, the Depositary or Depositaries for such Global
Security or Global Securities and any circumstances
other than those set forth in Section 305 in which any
such Global Security may be transferred to, and
registered and exchanged for Securities registered in
the name of, a Person other than the Depositary for
such Global Security or a nominee thereof and in which
any such transfer may be registered;
(20) the terms and conditions upon which
Securities of the series will be convertible into
shares of Common Stock or other securities of the
Company, including the conversion price, the conversion
period and other conversion terms and provisions; and
(21) any other term of the series (which term
shall not be inconsistent with the provisions of this
Indenture), including, but not limited to, any terms
which may be required by or advisable under United
States laws or regulations or advisable in connection
with the marketing of Securities of the series.
All Securities of any one series shall be substantially
identical except as to denomination and the rate or rates of
interest, if any, and Stated Maturity, the date from which
interest, if any, shall accrue and except as may otherwise be
provided in or pursuant to an Officers' Certificate pursuant to
this Section 301 or in an indenture supplemental hereto. All
Securities of any one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened, without
the consent of the Holders, for issuances of additional
Securities of such series or for the establishment of additional
terms with respect to the Securities of such series.
The principal of, premium, if any, and interest on the
Securities shall be payable at the office or agency maintained by
the Company for such purposes as provided in Section 1102 (herein
called the "Place of Payment"); provided, however, that, unless
otherwise provided in or pursuant to an Officers' Certificate
pursuant to this Section 301 or in an indenture supplemental
hereto, payment of interest may be made at the option of the
Company by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated in Section
301. In the absence of any specification with respect to the
Securities of any series, the Securities of such series shall be
issuable in denominations of $1,000 and any integral multiple
thereof.
SECTION 303. Execution, Authentication, Dating and
Delivery.
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, Vice Chairman of the Board, President
or one of its Vice Presidents under its corporate seal reproduced
thereon and attested by its Secretary or one of its Assistant
Secretaries. The signatures of any or all of these officers on
the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who are, at any time on or after the date as of which
this Indenture is dated, the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication
and delivery of such Securities or did not hold such offices at
the date of such Securities.
At any time and from time to time, the Company may deliver
Securities of any series executed by the Company to the Trustee
for authentication, together with a Company Order for the
authentication and make available for delivery such Securities,
and the Trustee in accordance with the Company Order shall
authenticate and deliver such Securities; provided, however, that
in the case of Securities offered in a Periodic Offering, the
Trustee shall authenticate and deliver such Securities from time
to time in accordance with such other procedures (including,
without limitation, the receipt by the Trustee of oral or
electronic instructions from the Company or its duly authorized
agents, promptly confirmed in writing) acceptable to the Trustee
as may be specified by or pursuant to a Company Order delivered
to the Trustee prior to the time of the first authentication of
Securities of such series.
If the form or terms of the Securities of a series have been
established by or pursuant to one or more Officers' Certificates
as permitted by Section 301, in authenticating such Securities
and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and shall be fully protected in relying
upon, an Opinion of Counsel stating,
(1) that the forms and terms of such Securities have
been established in conformity with the provisions of this
Indenture; and
(2) that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the manner
and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding obligations of
the Company, enforceable in accordance with their respective
terms, subject to customary exceptions;
provided, however, that, with respect to Securities of
a series subject to a Periodic Offering, the Trustee
shall be entitled to receive such Opinion of Counsel
only once at or prior to the time of the first
authentication of Securities of such series and that
the Opinion of Counsel above may state:
(x) that the forms of such Securities have been,
and the terms of such Securities (when established in accordance
with such procedures as may be specified from time to time in a
Company Order, all as contemplated by and in accordance with a
Board Resolution or an Officers' Certificate pursuant to Section
301, as the case may be) will have been, established in
conformity with the provisions of this Indenture; and
(y) that such Securities, when (1) executed by
the Company, (2) completed, authenticated and delivered by the
Trustee in accordance with this Indenture, and (3) issued by the
Company in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company, enforceable in accordance
with their respective terms, subject to customary exceptions.
With respect to Securities of a series subject to a Periodic
Offering, the Trustee may conclusively rely, as to the
authorization by the Company of any of such Securities, the form
and terms thereof and the legality, validity, binding effect and
enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to Section 201 or 301, at or prior
to the time of the first authentication of Securities of such
series unless and until it has received written notification that
such opinion or other documents have been superseded or revoked.
In connection with the authentication and delivery of Securities
of a series subject to a Periodic Offering, the Trustee shall be
entitled to assume that the Company's instructions to
authenticate and deliver such Securities do not violate any
rules, regulations or orders of any governmental agency or
commission having jurisdiction over the Company.
Notwithstanding the provisions of Section 301 and of the two
preceding paragraphs, if all of the Securities of any series are
not to be issued at one time, it shall not be necessary to
deliver the Officers' Certificate otherwise required pursuant to
Section 301 at or prior to the time of the authentication of each
Security of such series if such Officers' Certificate is
delivered at or prior to the authentication upon original
issuance of the first Security of such series to be issued.
The Trustee shall not be required to authenticate such
Securities if the issue thereof will adversely affect the
Trustee's own rights, duties or immunities under the Securities
and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee or such action would expose
the Trustee to personal liability to existing Holders.
Unless otherwise provided in the form of Security for any
series, all Securities shall be dated the date of their
authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose, unless there
appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence,
that such Security has been duly authenticated and delivered
hereunder.
Notwithstanding the foregoing, if any Security shall have
been authenticated and delivered hereunder but never issued and
sold by the Company, and the Company shall deliver such Security
to the Trustee for cancellation as provided in Section 309
together with a written statement (which need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered
hereunder, shall not be considered Outstanding and shall not be
entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order, the
Trustee shall authenticate and deliver, such temporary Securities
which may be printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denominations,
substantially of the tenor of such definitive Securities in lieu
of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers
executing such temporary Securities may determine, as evidenced
by their execution of such temporary Securities.
If temporary Securities of any series are issued, the
Company will cause definitive Securities of such series to be
prepared without unreasonable delay. After the preparation of
definitive Securities of any series, the temporary Securities of
such series shall be exchangeable for definitive Securities of
such series, upon surrender of the temporary Securities of such
series at any office or agency maintained by the Company for such
purposes as provided in Section 1102, without charge to the
Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of such series
having the same interest rate and Stated Maturity and bearing
interest from the same date of any authorized denominations.
Until so exchanged the temporary Securities of such series shall
in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
SECTION 305. Registration, Transfer and Exchange.
The Company shall cause to be kept at the offices or
agencies to be maintained by the Company as provided in Section
1102 of this Indenture a register for each series of Securities
issued hereunder (herein sometimes referred to as a "Security
Register" and all such registers for each series of Securities
herein sometimes collectively referred to as the "Security
Register") in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of
Securities and the registration of transfers and exchanges of
Securities as herein provided.
Upon surrender for registration of transfer of any Security
of any series at any office or agency to be maintained by the
Company as provided in Section 1102, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new
Securities of such series having the same interest rate and
Stated Maturity and bearing interest from the same date of any
authorized denominations of a like aggregate principal amount,
all as requested by the transferor.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of such series having the same
interest rate and Stated Maturity and bearing interest from the
same date of any authorized denominations, of a like aggregate
principal amount, upon surrender of the Securities to be
exchanged at any such office or agency, and upon payment, if the
Company shall so require, of the charges hereinafter provided.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued in exchange for or upon transfer of
Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered for such exchange
or transfer.
Every Security presented or surrendered for registration of
transfer or 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 Trustee duly executed by the Holder thereof or his attorney
duly authorized in writing.
Unless otherwise provided in the Securities to be
transferred or exchanged, no service charge shall be made for any
transfer or exchange of Securities, but the Company may (unless
otherwise provided in such Securities) require payment of a sum
sufficient to cover any tax or other governmental charge that may
be imposed in connection with any transfer or exchange of
Securities, other than exchanges expressly provided in this
Indenture to be made at the Company's own expense or without
expense or without charge to Holders.
The Company shall not be required (i) to issue, transfer or
exchange any Securities of any series during a period beginning
at the opening of business 15 days before the day of the mailing
of a notice of redemption of Securities of such series to be
redeemed under Section 403 and ending at the close of business on
the day of the mailing of a notice of redemption of Securities of
such series so selected for redemption, or (ii) to transfer or
exchange any Securities so selected for redemption in whole or
that portion of any Security selected for redemption in part.
Notwithstanding any other provision in this Indenture, any
Global Security shall be exchangeable pursuant to this Section
305 for Securities registered in the names of Persons other than
the Depositary for such Global Security or its nominee only when
(i) such Depositary notifies the Company and the Trustee in
writing that it is unwilling or unable to continue as Depositary
for such Global Security or if at any time such Depositary ceases
to be a clearing agency registered under the Securities Exchange
Act of 1934, as amended, and a successor Depositary is not
appointed by the Company within 90 days, (ii) the Company in its
sole discretion determines that Securities shall no longer be
represented by a Global Security and executes and delivers to the
Trustee a Company Order that such Global Security shall be so
exchangeable, (iii) 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 the Securities represented by such Global
Security or (iv) there shall exist such other circumstances, if
any, as shall be specified for this purpose as contemplated by
Section 301. Any Global Security that is exchangeable pursuant
to clause (i), (ii), (iii) or (iv) above, shall be surrendered by
the Depositary, or such other depositary as shall be specified in
the Company Order with respect thereto, to the Trustee, as the
agent for such purpose, to be exchanged, in whole or in part, for
definitive Securities without charge, and the Trustee shall
authenticate and deliver, in exchange for each portion of such
permanent Global Security, an equal aggregate principal amount of
definitive Securities, executed by the Company, of the same
series of authorized denominations and of like tenor as the
portion of such Global Security to be exchanged, which shall be
in the form of registered Securities as provided in the Company
Order.
Every Security authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, a Global
Security other than pursuant to clauses (i), (ii), (iii) or (iv)
in the preceding paragraph, whether pursuant to this Section,
Section 304, 306, 407 or 1006 or otherwise, shall be
authenticated and delivered in the form of, and shall be, a
Global Security.
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities.
A mutilated Security may be surrendered and, after the
delivery to the Company and the Trustee of such security or
indemnity as may be required by them to save each of them
harmless, the Company may execute and the Trustee may
authenticate and deliver in exchange therefor a new Security of
the same series of like tenor and principal amount and bearing a
number or other identifying mark not contemporaneously
Outstanding.
If there be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft
of any Security, and (ii) such security or indemnity as may be
required by them to save each of them harmless, then, the Company
may execute and upon its request the Trustee may authenticate and
deliver in lieu of any such destroyed, lost or stolen Security a
new Security of the same series of like tenor and principal
amount and bearing a number or other identifying mark not
contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the
Company in its discretion may instead of issuing a new Security,
pay such Security.
Upon the issuance of any new Security under this Section,
the Company may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security shall be at
any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any
and all other Securities of the same series duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights
Preserved.
Interest which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date, on any Security,
shall unless otherwise provided in such Security be paid to the
Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest.
In the case of Securities represented by a Global Security
registered in the name of or held by a Depositary or its nominee,
unless otherwise specified by Section 301, payment of principal,
premium, if any, and interest, if any, will be made to the
Depositary or its nominee, as the case may be, as the registered
owner or Holder of such Global Security.
Unless otherwise stated in the form of Security of a series,
interest on the Securities of any series shall be computed on the
basis of a 360-day year comprised of twelve 30-day months.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment
Date (herein called "Defaulted Interest") shall forthwith cease
to be payable to the registered Holder on the relevant Regular
Record Date by virtue of having been such Holder; and such
Defaulted Interest may be paid by the Company, at its election in
each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names any such
Securities (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest which shall be fixed in
the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid
on each Security and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall
fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than
10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each
Holder of such Securities, at his address as it appears in the
Security Register, not less than 10 days prior to such Special
Record Date. The Trustee may, in its discretion, in the name and
at the expense of the Company, cause a similar notice to be
published at least once in an Authorized Newspaper, but such
publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names
such Securities (or their respective Predecessor Securities) are
registered on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities
of that series may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company
to the Trustee of the proposed payment pursuant to this Clause,
such payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon transfer of or in
exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of any 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, premium, if any, and (subject
to Section 307) 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.
None of the Company, the Trustee or any agent of the
Company, or the Trustee shall have any responsibility or
liability for any aspect of the records relating to or payments
made on account of beneficial ownership interests of a Global
Security, or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any Global
Security, nothing herein shall prevent the Company, or the
Trustee, or any agent of the Company, or the Trustee, from giving
effect to any written certification, proxy or other authorization
furnished by any depository (or its nominee), as a Holder, with
respect to such Global Security or impair, as between such
depository and owners of beneficial interests in such Global
Security, the operation of customary practices governing the
exercise of the rights of such Depository (or its nominee) as
Holder of such Global Security.
SECTION 309. Cancellation.
All Securities surrendered for payment, transfer or exchange
shall, if surrendered to the Company or any agent of the Company,
be delivered to the Trustee and shall be promptly cancelled by it
or if surrendered to the Trustee shall be cancelled by it. The
Company may at any time deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and
all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture. All
cancelled Securities held by the Trustee shall be destroyed by
the Trustee and a certificate of such destruction shall be
delivered to the Company.
ARTICLE FOUR
REDEMPTION OF SECURITIES; SINKING FUNDS
SECTION 401. Applicability of Article.
The Company may reserve the right to redeem and pay before
Stated Maturity all or any part of the Securities of any series,
either by optional redemption, sinking fund (mandatory or
optional) or otherwise, by provision therefor in the form of
Security for such series approved or established pursuant to
Section 202 and on such terms as are specified in such form or
the Officers' Certificate delivered pursuant to Section 301 or
the indenture supplemental hereto as provided in Section 301 with
respect to Securities of such series. Redemption of Securities
of any series shall be made in accordance with the terms of such
Securities and, to the extent that this Article does not conflict
with such terms, in accordance with this Article.
SECTION 402. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities
redeemable at the option of the Company shall be evidenced by an
Officers' Certificate. In case of any redemption at the election
of the Company of less than all the Securities of any series, the
Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such
series to be redeemed. In case of any redemption at the election
of the Company of all the Securities of any series, the Company
shall, at least 45 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date.
SECTION 403. Selection by Trustee of Securities to Be
Redeemed.
If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by
the Trustee from the Outstanding Securities of such series not
previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the
selection for redemption of portions of the principal of
Securities of such series of a denomination larger than the
minimum authorized denomination for Securities of such series.
Unless otherwise provided by the terms of the Securities of any
series so selected for partial redemption, the portions of the
principal amount which remains Outstanding shall not be less than
the minimum authorized denomination for Securities of such
series.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any
Security selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Security redeemed or
to be redeemed only in part, to the portion of the principal of
such Security which has been or is to be redeemed.
SECTION 404. Notice of Redemption.
Notice of redemption shall be given in the manner provided
in Section 106, not less than 30 nor more than 60 days prior to
the Redemption Date, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all Outstanding Securities of any
series are to be redeemed, the identification (and, in the case
of partial redemption, the respective principal amounts) of the
Securities to be redeemed from the Holder to whom the notice is
given;
(4) in case any Security is to be redeemed in part
only, the notice which relates to such Security shall state that
on and after the Redemption Date, upon surrender of such
Security, the holder will receive, without a charge, a new
Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed;
(5) that on the Redemption Date, the Redemption Price
will become due and payable upon each such Security, and that
interest, if any, thereon shall cease to accrue on said date;
(6) the place where such Securities are to be
surrendered for payment of the Redemption Price, which shall be
the office or agency maintained by the Company for such purposes
as provided in Section 1102; and
(7) that the redemption is on account of a sinking
fund, if that be the case.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, on
Company Request, by the Trustee in the name and at the expense of
the Company.
Unless any Security by its terms prohibits any sinking fund
payment obligation from being satisfied by delivering and
crediting Securities (including Securities redeemed otherwise
than through a sinking fund), the Company may deliver such
Securities to the Trustee for crediting against such payment
obligation in accordance with the terms of such Securities and
this Indenture.
SECTION 405. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting
as its own Paying Agent, segregate and hold in trust as provided
in Section 1103) an amount of money sufficient to pay the
Redemption Price of, which shall include any premium and interest
payable on, all the Securities which are to be redeemed on that
date.
SECTION 406. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified
and on such date (unless the Company shall default in the payment
of the Redemption Price) such Securities shall cease to bear
interest. Upon surrender of such Securities for redemption in
accordance with said notice, such Securities shall be paid by the
Company at the Redemption Price together with accrued interest to
the Redemption Date. Installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable
to the Holders of such Securities on the relevant Regular Record
Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until
paid, bear interest from the Redemption Date at the rate borne by
such Security, or as otherwise provided in such Security.
SECTION 407. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at the office or agency maintained by the Company for
such purposes as provided in Section 1102 (with, if the Company
or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder of such Security or his
attorney duly authorized in writing) and the Company shall
execute and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or
Securities of the same series having the same interest rate and
Stated Maturity and bearing interest from the same date of any
authorized denominations as requested by such Holder, in
aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so
surrendered.
SECTION 408. Provisions with Respect to any Sinking Funds.
If the form or terms of any series of Securities shall
provide that, in lieu of making all or any part of any mandatory
sinking fund payment with respect to such series of Securities in
cash, the Company may at its option (1) deliver to the Trustee
for cancellation any Securities of such series theretofore
acquired by the Company, or (2) receive credit for any Securities
of such series (not previously so credited) acquired by the
Company and theretofore delivered to the Trustee for
cancellation, then Securities so delivered or credited shall be
credited at the applicable sinking fund Redemption Price with
respect to Securities of such series.
On or before the 60th day next preceding each sinking fund
Redemption Date, the Company will deliver to the Trustee a
certificate signed by the Treasurer or any Assistant Treasurer of
the Company specifying (i) the portion of the mandatory sinking
fund payment to be satisfied by deposit of funds, by delivery of
Securities theretofore purchased or otherwise acquired by the
Company (which Securities shall accompany such certificate) and
by credit for Securities acquired by the Company and theretofore
delivered to the Trustee for cancellation redeemed by the Company
and stating that the credit to be applied has not theretofore
been so applied or applied in lieu of retiring Funded Debt
pursuant to Section 1105 and (ii) whether the Company intends to
exercise its right, if any, to make an optional sinking fund
payment, and if so, the amount thereof. Such certificate shall
also state that no Event of Default has occurred and is
continuing. Such certificate shall be irrevocable and upon its
delivery the Company shall be obligated to make the payment or
payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. In case of the failure of
the Company on or before the 60th day next preceding each sinking
fund Redemption Date to deliver such certificate (or to deliver
the Securities specified in this paragraph), the sinking fund
payment due on the next succeeding sinking fund payment date
shall be paid entirely in funds and shall be sufficient to redeem
the principal amount of Securities as a mandatory sinking fund
payment, without the option to deliver or credit Securities as
provided in the first paragraph of this Section 408 and without
the right to make an optional sinking fund payment as provided
herein.
If the sinking fund payment or payments (mandatory or
optional) with respect to any series of Securities made in cash
plus any unused balance of any preceding sinking fund payments
with respect to Securities of such series made in cash shall
exceed $100,000 (or a lesser sum if the Company shall so
request), unless otherwise provided by the terms of such series
of Securities, said cash shall be applied by the Trustee on the
sinking fund Redemption Date with respect to Securities of such
series next following the date of such payment to the redemption
of Securities of such series at the applicable sinking fund
Redemption Price with respect to Securities of such series,
together with accrued interest, if any, to the date fixed for
redemption, with the effect provided in Section 406. The Trustee
shall select, in the manner provided in Section 403, for
redemption on such sinking fund Redemption Date a sufficient
principal amount of Securities of such series to utilize said
cash and shall thereupon cause notice of redemption of the
Securities of such series for the sinking fund to be given in the
manner provided in Section 404 (and with the effect provided in
Section 406) for the redemption of Securities in part at the
option of the Company. Any sinking fund moneys not so applied or
allocated by the Trustee to the redemption of Securities of such
series shall be added to the next cash sinking fund payment with
respect to Securities of such series received by the Trustee and,
together with such payment, shall be applied in accordance with
the provisions of this Section 408. Any and all sinking fund
moneys with respect to Securities of any series held by the
Trustee at the Maturity of Securities of such series, and not
held for the payment or redemption of particular Securities of
such series, shall be applied by the Trustee, together with other
moneys, if necessary, to be deposited sufficient for the purpose,
to the payment of the principal of the Securities of such series
at Maturity.
On or before each sinking fund Redemption Date provided with
respect to Securities of any series, the Company shall pay to the
Trustee in cash a sum equal to all accrued interest, if any, to
the date fixed for redemption on Securities to be redeemed on
such sinking fund Redemption Date pursuant to this Section 408.
ARTICLE FIVE
SATISFACTION AND DISCHARGE
SECTION 501. Satisfaction and Discharge of Indenture.
This Indenture upon Company Request shall cease to be of
further effect (except as to (i) remaining rights of registration
of transfer, substitution and exchange of Securities, (ii) rights
hereunder of Holders to receive payments of principal of,
premium, if any, and interest on, the Securities, and other
rights, duties and obligations of the Holders as beneficiaries
hereof with respect to the amounts, if any, so deposited with the
Trustee and (iii) the rights, obligations and immunities of the
Trustee hereunder), and the Trustee, on demand of and at the
expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been mutilated,
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306 and (ii) Securities for which payment
money has theretofore been deposited in trust or segregated and
held in trust by the Company including money so deposited in
trust or so segregated and held in trust and thereafter repaid to
the Company or discharged from such trust, as provided in Section
1103) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption
within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company
and the Company, in the case of (i), (ii), or (iii)
above, has deposited or caused to be deposited with the Trustee
as trust funds in trust an amount sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal,
premium, if any, and interest to the date of such deposit (in the
case of Securities which have become due and payable), or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating that
all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 707
shall survive and the Company hereby agrees to reimburse the
Trustee for any costs or expenses hereafter reasonably and
properly incurred in connection with this Indenture or the
Securities.
SECTION 502. Application of Trust Money.
All money deposited with the Trustee pursuant to Section 501
shall be held in trust and applied by it to the payment, either
directly or through any Paying Agent, as the Trustee may
determine, to the Holders of the Securities for whose payments
such money has been deposited with the Trustee, of all sums due
and to become due thereon for principal, premium, if any, and
interest; but such money need not be segregated from other funds
except to the extent required by law.
ARTICLE SIX
REMEDIES
SECTION 601. Events of Default.
"Event of Default", with respect to any series of
Securities, wherever used and herein, means any one of the
following events (whatever the reason for such Event of Default
and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any
administrative or governmental body), unless such event is either
inapplicable to a particular series or it is specifically deleted
or modified in the supplemental indenture under or the Board
Resolution under or pursuant to which such series of Securities
is issued or in the form of Security for such series:
(1) default in the payment of any installment of
interest upon any Security of such series when it becomes due and
payable, and continuance of such default for a period of 30 days
after its due date; or
(2) default in the payment of principal of or premium,
if any, on any Security of such series at its Maturity; or
(3) default in the making or satisfaction of any
sinking fund payment or analogous obligation with respect to the
Securities of such series when the same becomes due by the terms
of the Securities of such series; or
(4) default in the performance, or breach, of any
covenant or warranty of the Company in respect of the Securities
of such series in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with), and
continuance of such default or breach for a period of 90 days
after there has been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in principal amount of the
Outstanding Securities of such series, a written notice
specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder;
or
(5) if an event of default with respect to any other
series of Securities issued or hereafter issued pursuant to this
Indenture or as defined in any mortgage, indenture or instrument,
under which there may be issued, or by which there may be secured
or evidenced, any indebtedness of the Company, whether such
indebtedness now exists or shall hereafter be created, shall
happen and shall result in such other series of Securities or
such indebtedness, as the case may be, becoming or being declared
due and payable prior to the date on which it would otherwise
become due and payable, and such acceleration shall not be
rescinded or annulled within 30 days after written notice to the
Company from the Trustee or to the Company and to the Trustee
from the Holders of not less than 25% in principal amount of the
Securities of such series at the time Outstanding; provided,
however, that the aggregate principal amount of indebtedness
outstanding with respect to which such default or defaults relate
exceeds $5,000,000; and provided further, however, that, subject
to the provisions of Section 701 and Section 703, the Trustee
shall not be charged with knowledge of any such default unless
written notice thereof shall have been given to a Responsible
Officer by the Holder or an agent of the Holder of any Securities
of any such other series or of any such indebtedness, as the case
may be, or by the Trustee then acting under this Indenture with
respect to such other series of Securities or under any indenture
or other instrument, as the case may be, under which such default
shall have occurred, or by the Holders of not less than 25% in
the aggregate principal amount of the Securities of such series
at the time Outstanding; and provided, further, that if such
event of default with respect to such other series of Securities
or such indebtedness, as the case may be, pursuant to this
Indenture or such indenture or instrument, as the case may be,
shall be remedied or cured by the Company or waived by the
Holders of such other series of Securities or the holders of such
indebtedness, as the case may be, pursuant to this Indenture or
such indenture or instrument, as the case may be, then unless the
maturity of the Securities of such series shall have been
accelerated as provided herein, the Event of Default hereunder by
reason thereof shall be deemed likewise to have been thereupon
remedied, cured or waived without further action upon the part of
either the Trustee or the Holders of Securities of such series;
or
(6) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in
respect of the Company under the Federal Bankruptcy Code or any
other applicable Federal or State law, or appointing a receiver,
liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its
property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order unstayed
and in effect for a period of 90 consecutive days; or
(7) the institution by the Company of proceedings to
be adjudicated a bankrupt or insolvent, or the consent by it to
the institution of bankruptcy or insolvency proceedings against
it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under the Federal Bankruptcy
Code or any other applicable Federal or State law, or the consent
by it to the filing of any such petition or to the appointment of
a receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Company or any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to
pay its debts generally as they become due and its willingness to
be adjudicated a bankrupt, or the taking of corporate action by
the Company in furtherance of any such action; or
(8) any other Event of Default provided with respect
to Securities of that series.
SECTION 602. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default with respect to any series of
Securities for which there are Securities Outstanding occurs and
is continuing, then and in every such case the Trustee or the
Holders of not less than 25% in principal amount of the
Outstanding Securities of such series may declare the principal
(or, if the Securities of that series are Original Issue Discount
Securities or Indexed Securities, such portion of the principal
amount as may be specified in the terms of that series) of all
the Securities of such series to be due and payable immediately,
by a notice in writing to the Company (and to the Trustee if
given by Holders), and upon any such declaration such principal
(or, in the case of Original Issue Discount Securities or Indexed
Securities, such specified amount) shall become immediately due
and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a
judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the
Holders of a majority in principal amount of the Outstanding
Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee
a sum sufficient to pay
(A) all overdue installments of interest on all
Securities of such series,
(B) the principal of and premium, if any, on any
Securities of such series which have become due otherwise than by
such declaration of acceleration and interest thereon at the rate
borne by the Securities of such series or as otherwise provided
in the form of Security of such series,
(C) to the extent that payment of such interest
is lawful, interest upon overdue installments of interest at the
rate borne by the Securities of such series or as otherwise
provided in the form of Security of such series, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default, other than the non-payment
of the principal of Securities of such series which have become
due solely by such acceleration, have been cured or waived as
provided in Section 613.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
SECTION 603. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any installment
of interest on any Security of any series when such interest
becomes due and payable and such default continues for a period
of 30 days, or
(2) default is made in payment of the principal of or
premium, if any, on any Security of any series at the Maturity
thereof, or
(3) default is made in the making or satisfaction of
any sinking fund payment or analogous obligation with respect to
the Securities of any series when the same becomes due by the
terms of the Securities of any series,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of any such Security (or Holders of
Securities of any such series in the case of Clause (3) above),
the whole amount then due and payable on any such Security (or
Securities of any such series in the case of Clause (3) above),
for principal, premium, if any, and interest, with interest upon
the overdue principal and premium, if any, and, to the extent
that payment of such interest shall be legally enforceable, upon
overdue installments of interest, at the rate borne by the
Securities of such series or as otherwise provided in the form of
Security of such series; and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel, and such other amounts due pursuant to Section 707.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, and may prosecute such proceeding to
judgment or final decree, and may enforce the same against the
Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor
upon such Securities, wherever situated.
If any Event of Default with respect to any series of
Securities occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
SECTION 604. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company
or any other obligor upon the Securities of any series or the
property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of
the Securities of such series shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such proceeding or
otherwise
(1) to file and prove a claim for the whole amount of
principal, premium, if any, and interest owing and unpaid in
respect of the Securities of such series and to file such
other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel, and such other amounts due pursuant to Section 707)
and of the Holders of the Securities of such series allowed
in such judicial proceeding, and
(2) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same,
and any receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee,
and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel, and all other amounts due the Trustee under Section 707.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept, or adopt on behalf
of any Holder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or the rights of any
Holder thereof, or to authorize the Trustee to vote in respect of
the claim of any Holder (except, as aforesaid, for the election
of a trustee in bankruptcy or other person performing similar
functions) in any such proceeding.
SECTION 605. Trustee May Enforce Claims without Possession
of Securities.
All rights of action and claims under this Indenture or the
Securities of any series may be prosecuted and enforced by the
Trustee without the possession of any of the Securities of such
series or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall
be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment
of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities of such series
in respect of which such judgment has been recovered.
SECTION 606. Application of Money Collected.
Any money collected by the Trustee with respect to any
series of Securities pursuant to this Article shall be applied in
the following order, at the date or dates fixed by the Trustee,
and, in the case of the distribution of such money on account of
principal, premium, if any, or interest, upon presentation of the
Securities of such series and the notation thereof of the payment
if only partially paid and upon surrender thereof if fully paid;
FIRST: To the payment of all amounts due the Trustee
under Section 707;
SECOND: To the payment of the amounts then due and
unpaid upon the Securities of such series for principal, premium,
if any, and interest, in respect of which or for the benefit of
which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable
on such Securities, for principal, premium if any, and interest,
respectively, and
THIRD: The balance, if any, to the Company.
SECTION 607. Limitation on Suits.
No Holder of any Security of any series shall have any right
to institute any proceeding judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to
Securities of such series;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Securities of such series shall have
made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as trustee
hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities
to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute
any such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day period
by the Holders of a majority in principal amount of the
Outstanding Securities of such series;
it being understood and intended that no one or more Holders of
such series shall have any right in any manner whatever by virtue
of, or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other Holders of
Securities of such series, or to obtain or to seek to obtain
priority or preference over any other such Holders or to enforce
any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders
of such series.
SECTION 608. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment of the principal of,
premium, if any, and (subject to Section 307) interest on such
Security on the respective Stated Maturities expressed in such
Security (or in the case of redemption or repayment, on the
Redemption Date or Repayment Date, as the case may be) and to
institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 609. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding
to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or
has been determined adversely to the Trustee or to such Holder,
then and in every such case the Company, the Trustee and the
Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had
been instituted.
SECTION 610. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen securities in
the last paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 611. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of a
Security of any series to exercise any right or remedy accruing
upon any Event of Default with respect to the Securities of such
series shall impair any such right or remedy or constitute a
waiver of any such Event of Default with respect to the
Securities of such series or an acquiescence therein. Every
right and remedy given by this Article or by law to the Trustee
or to the Holders of the Securities of any series may be
exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders of the Securities of
such series, as the case may be.
SECTION 612. Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to
direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee with respect to the Securities
of such series, provided that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture, and
(2) the Trustee, in its good faith determination
subject to Sections 701 and 703 hereof, does not find that the
obeyance by it of such direction shall be unduly prejudicial to
the Holders of the Securities of such series not joining in such
direction or expose the Trustee to personal liability, and
provided, further, that the Trustee may take any other action
which in its discretion it deems proper and which is not
inconsistent with such direction.
SECTION 613. Waiver of Past Defaults.
The Holders of a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders
of all the Securities of such series waive any past default
hereunder and its consequences, except a default
(1) in the payment of the principal of, premium, if
any, or interest on any Securities of such series, or in the
payment of any sinking fund payment or analogous obligation with
respect to Securities of such series, or
(2) in respect of a covenant or provision hereof which
under Article Ten cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such series
affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have
been cured, for every purpose of the Security of such series
under the Indenture, but no such waiver shall extend to any
subsequent or other default or impair any right consequent
thereon.
SECTION 614. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture,
or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the cost of such suit, and
that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant
in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted
by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any
suit instituted by any Holder for the enforcement of the payment
of the principal of, premium, if any, or interest on any Security
on or after the respective Stated Maturities expressed in such
Security (or, in the case of redemption or repayment, on or after
the Redemption Date or Repayment Date).
ARTICLE SEVEN
THE TRUSTEE
SECTION 701. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default
with respect to any series of Securities,
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture
with respect to Securities of such series, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but in the case of any
such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether
they conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to any series
of Securities has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this
Indenture with respect to Securities of such series, and use the
same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct,
except that,
(1) this Subsection shall not be construed to limit
the effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(3) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount or such lesser principal amount as permitted in
this Indenture of the Outstanding Securities of any series
relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this
Indenture with respect to Securities of such series.
(d) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
there shall be reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(e) Whether or not herein expressly so provided, every
provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee as
between the Trustee and the Holders shall be subject to the
provisions of this Section.
SECTION 702. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder
with respect to Securities of any series known to a Responsible
Officer of the Trustee, the Trustee shall transmit by mail to all
Holders of Securities of such series, as their names and
addresses appear in the Security Register, notice of such
default, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the
payment of the principal of, premium, if any, or interest on any
Security of such series, or in the payment of any sinking fund
payment or analogous obligation with respect to Securities of
such series, the Trustee shall be protected in withholding such
notice if and so long as the executive committee or a trust
committee of directors and/or Responsible Officers of the Trustee
in good faith determines that the withholding of such notice is
in the interests of the Holders of Securities of such series; and
provided, further, that in the case of any default of the
character specified in Section 601(4) with respect to Securities
of such series, no such notice to Holders of Securities of such
series shall be given until at least 60 days, but in any event
within 90 days, after the occurrence thereof. For the purpose of
this Section, the term "default" with respect to the Securities
of any series means any event which is, or after notice or lapse
of time or both would become, an Event of Default with respect to
Securities of such series.
SECTION 703. Certain Rights of Trustee.
Subject to the provisions of Section 701:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or
Company Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be provided or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make an investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or
document but the Trustee, in its discretion, may make such
further inquiry or investigation into such fact or matters as it
may see fit, and, if the Trustee shall determine to make further
inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by
agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder; and
(h) the Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred
upon it by this Indenture.
SECTION 704. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except
the Trustee's certificate of authentication, shall be taken as
the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 705. May Hold Securities.
The Trustee, any Paying Agent, the Security Registrar or any
other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and,
subject to Sections 708 and 713, may otherwise deal with, or
collect obligations owed to it by the Company with the same
rights it would have if it were not Trustee, Paying Agent,
Security Registrar or such other agent.
SECTION 706. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the
Company.
SECTION 707. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this trust or
the performance of its duties hereunder, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers
or duties hereunder. As security for the performance of the
obligations of the Company under this Section the Trustee shall
have a claim prior to the Securities upon all property and funds
held or collected by the Trustee as such, except funds held in
trust for the payment of principal of, premium, if any, or
interest on particular Securities.
SECTION 708. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall
either eliminate such interest or resign, to the extent and in
the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Indenture. Nothing herein shall
prevent the Trustee from filing with the Commission the
application referred to in the last paragraph of Section 310(b)
of the Trust Indenture Act.
SECTION 709. Trustee Required; Eligibility.
There shall at all times be a Trustee with respect to each
series of Securities hereunder which shall be a corporation
organized and doing business under the laws of the United States
of America or of any State thereof, authorized under such laws to
exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000, subject to supervision or
examination by Federal or State authority. If such corporation
publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent
report of condition so published. Neither the Company nor any
Person directly or indirectly controlling, controlled by, or
under common control with the Company shall serve as Trustee for
the Securities of any series issued hereunder. If at any time
the Trustee with respect to any series of Securities shall cease
to be eligible in accordance with the provisions of this Section,
it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 710. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor Trustee under Section 711.
(b) The Trustee may resign at any time with respect to any
series of Securities by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee
may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities
of such series.
(c) The Trustee may be removed at any time with respect to
any series of Securities by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
708(a) with respect to any series of Securities after written
request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security of such series for at least six
months, or
(2) the Trustee shall cease to be eligible under
Section 709 with respect to any series of Securities and shall
fail to resign after written request therefor by the Company or
by any such Holder of a Security of such series, or
(3) the Trustee shall become incapable of acting with
respect to any series of Securities or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee with respect to such series, or (ii) subject
to Section 614, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee with respect to such series.
(e) If the Trustee shall resign, be removed or become
incapable of acting with respect to any series of Securities, or
if a vacancy shall occur in the office of Trustee with respect to
any series of Securities for any cause, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee with
respect to such series. If, within one year after such
resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to such series shall be
appointed by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee with respect to such series, the
successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with
respect to such series and supersede the successor Trustee
appointed by the Company with respect to such series. If no
successor Trustee with respect to such series shall have been so
appointed by the Company or the Holders of Securities of such
series and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee
with respect to such series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to any series and each
appointment of a successor Trustee with respect to any series by
written notice of such event by first-class mail, postage
prepaid, to the Holders of Securities of such series, as their
names and addresses appear in the Security Register. Each notice
shall include the name of the successor Trustee with respect to
such series and the address of its Corporate Trust Office.
SECTION 711. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become
effective with respect to all or any series as to which it is
resigning as Trustee, and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with
respect to all or any such series; but, on request of the Company
or such successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee with respect to all or any such
series, and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring
Trustee hereunder with respect to all or any such series, subject
nevertheless to its prior claim, if any, provided for in Section
707. Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts.
In case the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor
Trustee with respect to the Securities of any applicable series
shall execute and deliver an indenture supplemental hereto which
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
any series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and 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.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article to the extent
operative.
SECTION 712. Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor
of the Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article to the extent
operative, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case
any Securities shall have been authenticated, but not delivered,
by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities.
SECTION 713. Preferential Collection of Claims against
Company.
The Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship listed in
Section 311(b) of the Trust Indenture Act. A Trustee who has
resigned or been removed shall be subject to Section 311(a) of
the Trust Indenture Act to the extent indicated therein.
SECTION 714. Authenticating Agents.
The Trustee may (and at the request of the Company shall)
appoint one or more Authenticating Agents with power to act on
its behalf and subject to its direction in the authentication and
delivery of any series of Securities pursuant to Sections 303,
304, 305, 306, 407 and 1006 as fully to all intents and purposes
as though any such Authenticating Agent had been expressly
authorized by said Sections to authenticate and deliver such
Securities. One such Authenticating Agent shall at all times be
organized and doing business under the laws of the United States
of America or of any State or Territory thereof or of the
District of Columbia authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of at
least $50,000,000 and being subject to supervision or examination
by Federal, State, Territorial or District of Columbia authority.
If such corporation publishes reports of condition at least
annually pursuant to law or the requirements of such authority,
then for the purposes of this Section 714 the combined capital
and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent
report of condition so published.
Whenever reference is made in this Indenture to the
authentication and delivery of Securities of any series by the
Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery
on behalf of the Trustee by its Authenticating Agent appointed
with respect to the Securities of such series and a certificate
of authentication executed on behalf of the Trustee by its
Authenticating Agent appointed with respect to the Securities of
such series.
Any corporation into which any Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, consolidation or
conversion to which any Authenticating Agent shall be a party, or
any corporation succeeding to the corporate trust business of any
Authenticating Agent, shall be the successor of such
Authenticating Agent hereunder, if such successor corporation is
otherwise eligible under this Section 714, without the execution
or filing of any paper or any further act on the part of the
parties hereto or such Authenticating Agent or such successor
corporation.
Any Authenticating Agent may at any time resign as
Authenticating Agent with respect to any series of Securities by
giving written notice of resignation to the Trustee and to the
Company. The Trustee may at any time terminate the agency of any
Authenticating Agent with respect to any series of Securities by
giving written notice of termination to such Authenticating Agent
and to the Company. Upon receiving such a notice of resignation
or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible under this
Section 714, the Trustee may, and upon the request of the Company
shall, promptly appoint a successor Authenticating Agent eligible
under this Section 714, shall give written notice of such
appointment to the Company and shall mail notice of such
appointment to all Holders of each series of Securities with
respect to which such appointment has been made as their names
and addresses appear on the Security Register. Any successor
Authenticating Agent with respect to any series of Securities
upon acceptance of its appointment hereunder shall become vested
with all rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as
Authenticating Agent herein with respect to such series.
The Company agrees to pay to any Authenticating Agent from
time to time reasonable compensation for its services. The
provisions of Sections 308, 703, 704 and 705 shall be applicable
to any Authenticating Agent.
If an appointment is made pursuant to this Section 714 with
respect to the Securities of any series, the Securities of such
series shall have endorsed thereon in lieu of the Certificate of
Authentication, an alternate Certificate of Authentication in the
following form:
This is one of the Securities of the series designated
herein issued under the within-mentioned Indenture.
CHEMICAL BANK, as Trustee
By:
As Authenticating Agent
By:
Authorized Signatory
ARTICLE EIGHT
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 801. Company to Furnish Trustee Names and Addresses
of Holders.
The Company will furnish or cause to be furnished to the
Trustee
(a) semi-annually, not more than 15 days after each Regular
Record Date with respect to the Securities of any series, a list,
in such form as the Trustee may reasonably require, of the names
and addresses of the Holders of Securities of such series as of
such Regular Record Date, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any
such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished;
provided, however, that so long as the Trustee is the Security
Registrar with respect to the Securities of any series, no such
list described in (a) or (b) need be furnished to the Trustee
with respect to the Securities of such series.
SECTION 802. Preservation of Information; Communications to
Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of
Securities contained in the most recent list furnished to the
Trustee as provided in Section 801 and the names and addresses of
Holders of Securities received by the Trustee in its capacity as
the Security Registrar. The Trustee may destroy any list
furnished to it as provided in Section 801 upon receipt of a new
list so furnished.
(b) If three or more Holders of Securities of any series
(hereinafter referred to as "applicants") apply in writing to the
Trustee, and furnish to the Trustee reasonable proof that each
such applicant has owned a Security of such series for a period
of at six months preceding the date of such application, and such
application states that the applicants desire to communicate with
other Holders of Securities of such series or with Holders of all
Securities with respect to their rights under this Indenture or
under such Securities and is accompanied by a copy of the form of
proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five business days after
the receipt of such application, at its election, either
(1) afford such applicants access to the information
preserved at the time by the Trustee in accordance with Section
802(a), or
(2) inform such applicants as to the approximate
number of Holders of Securities of such series or of all
Securities, as the case may be, whose names and addresses appear
in the information preserved at the time by the Trustee in
accordance with Section 802(a), and as to the approximate cost of
mailing to such Holders the form of proxy or other communication,
if any, specified in such application.
If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the written
request of such applicants, mail to each Holder of a Security of
such series or all Holders of Securities, as the case may be,
whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with Section 802(a), a copy
of the form of proxy or other communication which is specified in
such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision
for the payment, of the reasonable expenses of mailing, unless
within five days after such tender, the Trustee shall mail to
such applicants and file with the Commission together with a copy
of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be
contrary to the best interests of the Holders of Securities of
such series or of all Securities, as the case may be, or would be
in violation of applicable law. Such written statement shall
specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to
sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall
find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all
such Holders with reasonable promptness after the entry of such
order and the renewal of such tender; otherwise the Trustee shall
be relieved of any obligation or duty to such applicants
respecting their application.
(c) Each and every Holder of the Securities, by receiving
and holding the same, agrees with the Company and the Trustee
that neither the Company nor the Trustee nor any Paying Agent nor
the Security Registrar shall be held accountable by reason of the
disclosure of any such information as to the names and addresses
of the Holders of the Securities in accordance with Section
802(b), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under
Section 802(b).
SECTION 803. Reports by Trustee.
(a) Within 60 days after May 15 in each year, beginning in
1995, the Trustee shall transmit to Holders of Securities, as
their names and addresses appear in the Security Register, a
brief report in accordance with and to the extent required under
the TIA.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange upon which any Securities are listed and also with the
Commission. The Company will notify the Trustee when any
Securities are listed on any stock exchange.
SECTION 804. Reports by Company.
The Company shall file with the Trustee and the Commission,
and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant
to the Trust Indenture Act at the times and in the manner
provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Securities and
Exchange Act of 1934 shall be filed with the Trustee within 15
days after the same is so required to be filed with the
Commission.
SECTION 805. Reports by Security Registrar.
If the Company shall appoint a Person other than the Trustee
to serve as the Security Registrar, the Security Registrar shall
be required to deliver to the Trustee reports in such form as the
Trustee may reasonably require. Such reports shall be sent to
the Trustee by facsimile within one Business Day after each
Interest Payment Date and after the principal of any Security
becomes due, upon maturity, by redemption or otherwise (the
"Payment Dates"), and a copy of such reports shall also be
delivered to the Trustee by overnight courier or shall be hand
delivered. Upon three days prior written notice from the
Trustee, the Security Registrar may also be required to provide
additional reports reasonably requested by the Trustee on dates
other than Payment Dates. The reports which the Security
Registrar shall be required to provide to the Trustee shall
include the following information:
(1) the Outstanding amount of all such Securities
issued pursuant to the Indenture as of the Regular Record Date
last preceding the date such report is finished, including
information as to the Outstanding amount of such Securities;
(2) a complete list of the names and addresses of the
Holders of such Outstanding Securities as of the Regular Record
Date last preceding the date such report is furnished, including
information as to the type and amount of such Securities held by
each such Holder and the amount of payments made to each such
Holder on the Payment Date last preceding the date of such
report; and
(3) such additional information, documents and reports
as the Trustee may reasonably request;
provided, however, that if any payment of principal or interest
is not made by 4:00 p.m. Eastern Standard Time on a required
Payment Date with respect to any Securities at the time
Outstanding, the Paying Agent will be required to provide notice
of such nonpayment to the Trustee by telephone by 5:00 p.m.
Eastern Standard Time on the date upon which such nonpayment
occurs and to deliver to the Trustee on the day following the
date upon which such nonpayment occurs the information required
pursuant to (1) and (2) above.
ARTICLE NINE
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 901. Company May Consolidate, etc., Only on Certain
Terms.
The Company shall not consolidate with or merge into any
other corporation or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
(1) the corporation formed by such consolidation with
or into which the Company is merged or the Person which acquires
by conveyance or transfer the properties and assets of the
Company substantially as an entirety shall be a corporation
organized and existing under the laws of the United States of
America or any State thereof or the District of Columbia, and
shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to
the Trustee, the due and punctual payment of the principal of,
premium, if any, and interest on all the Securities and the
performance of every covenant of this Indenture on the part of
the Company to be performed or observed;
(2) immediately after giving effect to such
transaction, no Event of Default and no event which, after notice
or lapse of time, or both, would become an Event of Default,
shall have happened and be continuing;
(3) if any Principal Property of the Company or any
Restricted Subsidiary would as a result of such consolidation,
merger, sale or conveyance become subject to any mortgage,
pledge, lien, security interest or other encumbrance not
permitted by Section 1104, the Company shall make effective
provisions whereby the Securities of each series then Outstanding
shall be secured by a lien on the Company or Restricted
Subsidiary's Principal Property that becomes subject to such
mortgage, pledge, lien, security interest or other encumbrance
not permitted by Section 1104 that is equal and ratable in rank
to all such resulting mortgages, pledges, liens, security
interests or other encumbrances not permitted by Section 1104;
and
(4) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating that
such consolidation, merger, conveyance or transfer and such
supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 902. Successor Corporation Substituted.
Upon any consolidation or merger, or any conveyance or
transfer of the properties and assets of the Company
substantially as an entirety in accordance with Section 901, the
successor corporation formed by such consolidation or into which
the Company is merged or to which such conveyance or transfer is
made shall succeed to, and be fully substituted for, and may
exercise every right and power of, the Company under this
Indenture with the same effect as if such successor corporation
had been named as the Company herein; and in the event of any
such conveyance or transfer, other than a transfer by way of a
lease, the Company (which term shall for this purpose mean the
Person named as the "Company" in the first paragraph of this
Indenture or any successor corporation which shall theretofore
become such in the manner prescribed in Section 901) shall be
discharged from all liability under this Indenture and in respect
of the Securities and may be dissolved and liquidated.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 1001. Supplemental Indentures Without Consent of
Holders.
Without the consent of any Holders of any Securities, the
Company, when authorized by a Board Resolution, and the Trustee,
at any time and from time to time, may enter into one or more
indentures supplemental hereto for any of the following purposes:
(1) to evidence the succession of another corporation
to the Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities contained;
or
(2) to add to the covenants of the Company, for the
benefit of the Holders of Securities of all or any series, or to
surrender any right or power herein conferred upon the Company;
or
(3) to secure the Securities of all series in
accordance with the provisions of Sections 901 and 1104; or
(4) to cure any formal defect, ambiguity, to correct
or supplement any provision herein which may be inconsistent with
any other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture
provided such provision shall not adversely affect the interest
of the Holders of Securities of any series; or
(5) to evidence and provide for the acceptance of
appointment by another corporation as a successor Trustee
hereunder with respect to one or more series of Securities and to
add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to
Section 711; or
(6) to modify, amend or supplement this Indenture in
such a manner as to permit the qualification of any indenture
supplement hereto under the Trust Indenture Act of 1939 as then
in effect, except that nothing herein contained shall permit or
authorize the inclusion in any indenture supplemental hereto of
the provisions referred to in Section 316(a)(2) of the Trust
Indenture Act; or
(7) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to facilitate the
issuance of Global Securities; or
(8) to provide for the issuance of Securities in
coupon form (including Securities registrable as to principal
only) and to provide for exchangeability of such Securities with
Securities of the same series issued hereunder in fully
registered form and to make all appropriate changes for such
purpose; or
(9) to establish any additional form of Security, as
permitted by Section 202, and to provide for the issuance of any
additional series of Securities, as permitted by Section 301, and
to set forth the terms thereof.
SECTION 1002. Supplemental Indentures with Consent of
Holders.
With the consent of the Holders of not less than a majority
in principal amount of the Outstanding Securities of each series
affected by such supplemental indenture (all such Holders voting
as a single class), by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of modifying in any manner the
rights of the Holders of Securities of each such series under
this Indenture; provided, however,
(1) that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security affected
thereby, change the Maturity or the principal of, or the Stated
Maturity of or the premium, if any, on or any installment of
interest on, any Security, or reduce the principal amount thereof
or any premium thereon or the interest thereon; and
(2) that no such supplemental indenture shall, without
the consent of the Holders of all of the Outstanding Securities
of each series affected:
(A) reduce the percentage of the principal amount
of the Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this
Indenture, or
(B) modify any of the provisions of this Section
or Section 613, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security of such series affected thereby or impair
the right of any Holder to institute suit under Section 608.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly
been included solely for the benefit of one or more particular
series of Securities, or which modifies the rights of the Holders
of Securities of such series with respect to such covenant or
other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of
Securities under this Section to approve the particular form of
any proposed supplemental indenture, but it shall be sufficient
if such Act shall approve the substance thereof.
SECTION 1003. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and (subject to Section
701) shall be fully protected in relying upon, an Officers'
Certificate and Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which adversely affects the
Trustee's own rights, duties or immunities under this Indenture
or otherwise.
SECTION 1004. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 1005. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the TIA as in effect
on the date of execution of such supplemental indenture.
SECTION 1006. Reference in Securities to Supplemental
Indentures.
Securities authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new
Securities of any series so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any such
supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE ELEVEN
COVENANTS
SECTION 1101. Payment of Principal, Premium and Interest.
With respect to each series of Securities, the Company will
duly and punctually pay the principal of, premium, if any, and
interest on the Securities of such series in accordance with the
terms of the Securities of such series and this Indenture.
SECTION 1102. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of that
series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of
transfer or exchange, where Securities may be surrendered for
conversion and where notices and demands to or upon the Company
in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of
any such office or agency. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands. The Company
hereby initially appoints Chemical Bank and its successor from
time to time as "Security Registrar" for the purpose of
registering Securities and transfers of Securities as provided in
Article Three.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more
series may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of
any series for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other
office or agency.
SECTION 1103. Money for Security Payments to be Held in
Trust.
If the Company shall at any time act as its own Paying Agent
for any series of Securities, it will, on or before each due date
of the principal of, premium, if any, or interest on, any of the
Securities of such series, segregate and hold in trust for the
benefit of the Holders of Securities of such series a sum
sufficient to pay the principal, premium or interest so becoming
due until such sums shall be paid to such Holders or otherwise
disposed of as herein provided and will promptly notify the
Trustee of any failure so to act.
Whenever the Company shall have appointed one or more Paying
Agents for any series of Securities, it will, prior to each due
date of the principal of, premium, if any, or interest on, any
Securities of such series, deposit with a designated Paying Agent
a sum sufficient to pay the principal, premium or interest, so
becoming due, such sum to be held in trust for the benefit of the
Holders of Securities of such series, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the
Trustee of any failure so to act.
The Company will cause each Paying Agent other than the
Trustee for any series of Securities to execute and deliver to
the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of, premium, if any, or interest on Securities of such
series in trust for the benefit of the Holders of Securities of
such series until such sums shall be paid to such Holders or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities of such series)
in the making of any payment of principal, premium or interest on
the Securities of such series; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay
to the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent or
then held by the Company in trust for the payment of the
principal of, premium, if any, or interest on any Security of any
series and remaining unclaimed for two years after such
principal, premium or interest has become due and payable shall
be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder
of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any
such repayment, may at the expense of the Company cause to be
published once, in an Authorized Newspaper or mailed to the
registered Holder, if any, or both, notice that such money
remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication
or mailing, any unclaimed balance of such money then remaining
will be repaid to the Company.
Unless specified otherwise in the form of Security of any
series, the Company hereby appoints the Trustee as initial Paying
Agent with respect to Securities of each series.
SECTION 1104. Limitation on Liens.
(a) So long as the Securities shall remain Outstanding, the
Company will not at any time create, assume or guarantee, and
will not cause, suffer or permit a Restricted Subsidiary to
create, assume or guarantee, any Secured Debt without making
effective provision (and the Company covenants that in such case
it will make or cause to be made effective provision) whereby the
Securities of each series then Outstanding and any other
indebtedness of or guaranteed by the Company or such Restricted
Subsidiary then entitled thereto, subject to applicable
priorities of payment, shall be secured by such mortgage, pledge,
lien, security interest or encumbrance equally and ratably with
any and all other obligations and indebtedness which shall be so
secured; provided, however, that the foregoing covenants shall
not be applicable to the following:
(l)(a) any mortgage, pledge, lien, security interest
or encumbrance (collectively in this Article Eleven referred to
as "lien") on any property hereafter acquired or constructed by
the Company or a Restricted Subsidiary to secure or provide for
the payment of all or any part of the purchase price or
construction cost of such property, including, but not limited
to, any indebtedness incurred by the Company or a Restricted
Subsidiary prior to, at the time of, or within 365 days after the
later of the acquisition, the completion of construction
(including any improvements on an existing property) or the
commencement of commercial operation of such property, which
indebtedness is incurred for the purpose of financing all or any
part of the purchase price thereof or construction or
improvements thereon; or (b) the acquisition of property subject
to any lien upon such property existing at the time of
acquisition thereof, whether or not assumed by the Company or
such Restricted Subsidiary; or (c) any lien existing on the
property or on the outstanding shares of capital stock or
indebtedness of a corporation at the time such corporation shall
become a Restricted Subsidiary; or (d) liens on property or
shares of capital stock or indebtedness of a corporation existing
at the time such corporation is merged into or consolidated with
the Company or a Restricted Subsidiary or at the time of a sale,
lease or other disposition of the properties of a corporation or
firm as an entirety or substantially as an entirety to the
Company or a Restricted Subsidiary; provided, however, that no
such lien shall extend to any other Principal Property of the
Company or such Restricted Subsidiary prior to such acquisition
or to other Principal Property thereafter acquired other than (a)
additions to such acquired property or (b) other Principal
Property which, together with such acquired property, is part of
a single construction or development program;
(2) liens on property of the Company or a Restricted
Subsidiary in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or
political subdivision of the United States of America or any
State thereof, or in favor of any other country, or any
department, agency or instrumentality or political subdivision
thereof (including, without limitation, liens to secured
indebtedness of the pollution control or industrial revenue bond
type), in order to permit the Company or a Restricted Subsidiary
to perform any contract or subcontract made by it with or at the
request of any of the foregoing, or to secure partial, progress,
advance or other payments pursuant to any contract or statute or
to secure any indebtedness incurred for the purpose of financing
all or any part of the purchase price or the cost of constructing
or improving the property subject to such liens;
(3) any lien on any property or assets of any
Restricted Subsidiary to secured indebtedness owing by it to the
Company or to a Restricted Subsidiary;
(4) any extension, renewal or replacement (or
successive extensions, renewals or replacements) in whole or in
part of any lien permitted by subsection (a) of this Section
1104; provided, however, that the principal amount of Secured
Debt secured thereby shall not exceed the principal amount of
Secured Debt so secured at the time of such extension, renewal or
replacement, and that such extension, renewal or replacement
shall be limited to the property which secured the lien so
extended, renewed or replaced and additions or improvements to
such property;
(5) the sale or other transfer of crude oil, natural
gas or other petroleum hydrocarbons in place for a period of time
until, or in an amount such that, the transferee will realize
therefrom a specified amount (however determined) of money or
such crude oil, natural gas or other petroleum hydrocarbons, or
the sale or other transfer of any other interest in property of
the character commonly referred to as a production payment or as
an overriding royalty.
(b) Notwithstanding the provisions of subsection (a) of
this Section 1104, the Company and any one or more Restricted
Subsidiaries may issue, assume or guarantee Secured Debt which
would otherwise be subject to the foregoing restrictions in an
aggregate amount which, together with all other Secured Debt of
the Company and its Restricted Subsidiaries which would otherwise
be subject to the foregoing restrictions (not including Secured
Debt permitted to be secured under subsection (a) above) and the
aggregate value of the Sale and Leaseback Transactions (as
defined in Section 1105) in existence at such time (not including
Sale and Leaseback Transactions the proceeds of which have been
or will be applied in accordance with Section 1105(b)), does not
exceed 10% of Consolidated Net Tangible Assets, determined as of
a date not more than 90 days prior thereto.
(c) In the event that the Company shall hereafter secure
the Securities of each series equally and ratably with any other
obligation or indebtedness pursuant to the provisions of this
Section 1104, the Trustee is hereby authorized to enter into an
indenture or agreement supplemental hereto and to take such
action, if any, as it may deem advisable to enable it to enforce
effectively the rights of the Holders of the Securities so
secured, equally and ratably with such other obligation or
indebtedness.
SECTION 1105. Sale and Leaseback Transactions.
So long as the Securities shall remain Outstanding, the
Company will not, and will not permit any Restricted Subsidiary
to, sell or transfer (except to the Company or one or more
Restricted Subsidiaries, or both) any Principal Property owned by
it and in full operation for more than 365 days with the
intention of taking back a lease on such Property (except a lease
for a term of no more than three years entered into with the
intent that the use by the Company or such Restricted Subsidiary
of such property will be discontinued on or before the expiration
of such term) (herein referred to as a "Sale and Leaseback
Transaction") unless either (a) the Company or such Restricted
Subsidiary would be entitled, pursuant to the provisions of
Section 1104 hereof, to incur Secured Debt equal in amount to the
amount realized or to be realized upon such sale or transfer
secured by a lien on the property to be leased without equally
and ratably securing the Securities, or (b) the Company or a
Restricted Subsidiary shall apply an amount equal to the value of
the property so leased to the retirement (other than any
mandatory retirement), within 120 days of the effective date of
any such arrangement, of Funded Debt as shown on the most recent
consolidated balance sheet of the Company and which, in the case
of such Funded Debt of the Company, is not subordinate and junior
in right of payment to the prior payment of the Securities;
provided, however, that in lieu of applying all or any part of
such amount to such retirement, the Company may at its option (x)
deliver to the Trustee Securities theretofore purchased or
otherwise acquired by the Company, or (y) receive credit for
Securities theretofore redeemed at its option pursuant to Section
401 hereof, which Securities have not theretofore been made the
basis for the reduction of a sinking fund payment pursuant to
Section 408. If the Company shall so deliver Securities to the
Trustee (or receive credit for Securities so delivered), the
amount which the Company shall be required to apply to the
retirement of indebtedness pursuant to this Section 1105 shall be
reduced by an amount equal to the aggregate principal amount of
such Securities.
The term "value" shall mean, with respect to a Sale and
Leaseback Transaction, as of any particular time, the amount
equal to the greater of (i) the Capitalized Rent with respect
thereto or (ii) the fair value of such property at the time of
entering into such Sale and Leaseback Transaction as determined
by the Board of Directors.
SECTION 1106. Annual Statement.
The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company, a certificate
of the principal accounting officer, principal financial officer
or principal executive officer of the Company stating that to the
best of the signer's knowledge, the Company has fulfilled all its
obligations under this Indenture throughout such year, or, if
there has been a default in the fulfillment of any such
obligation and such default is continuing, specifying each such
default of which such officer has knowledge, and the nature and
status thereof. For purposes of this Section 1106, default shall
be determined without regard to any grace period or requirement
of notice provided pursuant to the terms of this Indenture.
SECTION 1107. Waiver of Certain Covenants.
The Company may omit, in respect of any series of
Securities, in any particular instance to comply with any
covenant or condition set forth in Section 1104 and Section 1105,
inclusive, if before or after the time for such compliance the
Holders of at least a majority in principal amount of the
Securities of such series at the time Outstanding, shall, by Act
of such Holders, either waive such compliance in such instance or
generally waive compliance with such covenant or condition, but
no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the
Company shall remain in full force and effect.
ARTICLE TWELVE
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1201. Purposes of Meetings.
A meeting of Holders of Securities of all or any series may
be called at any time and from time to time pursuant to the
provisions of this Article for any of the following purposes:
(1) to give any notice to the Company or to the
Trustee, or to give any directions to the Trustee, or to waive
any default hereunder and its consequences, or to take any other
action authorized to be taken by the Holders of Securities
pursuant to any of the provisions of Article Six;
(2) to remove the Trustee and appoint a successor
Trustee pursuant to the provisions of Article Seven;
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of
Section 1002; or
(4) to take any other action authorized to be taken by
or on behalf of the Holders of any specified percentage in
aggregate principal amount of the Securities of all or any
series, as the case may be, under any other provision of this
Indenture or under applicable law.
SECTION 1202. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Holders of
Securities of all or any series to take any action specified in
Section 1201, to be held at such time and at such place in The
City of New York, the Borough of Manhattan, as the Trustee shall
determine. Notice of every meeting of the Holders of Securities
of all or any series, setting forth the time and place of such
meeting and in general terms the action proposed to be taken at
such meeting, shall be mailed, first-class postage prepaid, to
all Holders of Securities of each series that may be affected by
the action proposed to be taken at such meeting at their
addresses as they shall appear in the Security Register, no less
than 20 nor more than 60 days prior to the date fixed for the
meeting. Any meeting of Holders of Securities of all or any
series shall be valid without notice if the Holders of all such
Securities Outstanding, the Company and the Trustee are present
in person or by proxy or shall have waived notice thereof before
or after the meeting.
SECTION 1203. Call of Meetings by Company or Holders.
In case at any time the Company, by Board Resolution, or the
Holders of at least 10% in aggregate principal amount of the
Securities then Outstanding of each series that may be affected
by the action proposed to be taken at the meeting shall have
requested the Trustee to call a meeting of Holders of Securities
of all series that may be so affected to take any action
authorized in Section 1201 by written request setting forth in
reasonable detail the action proposed to be taken at the meeting,
and the Trustee shall not have mailed the notice of such meeting
within the time period specified under Section 1202, then the
Company or the Holders in the amount above specified may
determine the time and the place in The City of New York, the
Borough of Manhattan, for such meeting and may call such meeting
by mailing notice thereof as provided in Section 1202.
SECTION 1204. Qualifications for Voting.
To be entitled to vote at any meeting of Holders of
Securities a Person shall (a) be a Holder of one or more
Securities of a series affected by the action proposed to be
taken, or (b) be a Person appointed by an instrument in writing
as proxy by the Holder of one or more such Securities. The right
of Holders of Securities to have their votes counted shall be
subject to the proviso in the definition of "Outstanding" in
Section 101. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders of Securities shall
be the Persons entitled to vote at such meeting and their
counsel, any representatives of the Trustee and its counsel and
any representatives of the Company and its counsel.
SECTION 1205. Quorum; Adjourned Meetings.
At any meeting of Holders of Securities, the presence of
Persons holding or representing Securities in an aggregate
principal amount sufficient to take action on the business for
the transaction of which such meeting was called shall be
necessary to constitute a quorum. No business shall be
transacted in the absence of a quorum unless a quorum is
represented when the meeting is called to order. In the absence
of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of the
Holders of Securities (as provided in Section 1203), be
dissolved. In any other case the Persons holding or representing
a majority in aggregate principal amount of the Securities
represented at the meeting may adjourn such a meeting for a
period of not less than 10 days with the same effect, for all
intents and purposes, as through a quorum had been present. In
the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be similarly further adjourned for a period
of not less than 10 days. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1202
except that such notice may be mailed not less than five days
prior to such date.
Any Holder of a Security who has executed an instrument in
writing complying with the provisions of Section 104 shall be
deemed to be present for the purposes of determining a quorum and
be deemed to have voted; provided, however, that such Holder
shall be considered as present or voting only with respect to the
matters covered by such instrument in writing.
Any resolution passed or decision taken at any meeting of
the Holders of Securities of any series duly held in accordance
with this Section shall be binding on all Holders of such series
of Securities whether or not present or represented at the
meeting.
SECTION 1206. Regulations.
Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities, in regard to
proof of the holding of Securities and of the appointment of
proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such
other matters concerning the conduct of the meeting as it shall
think fit.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have
been called by the Company or by Holders of Securities as
provided in Section 1203, in which case the Company or the
Holders of Securities calling the meeting, as the case may be,
shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be
elected by vote of the Holders of a majority in principal amount
of the Securities represented at the meeting.
At any meeting each Holder of a Security of a series
entitled to vote at such meeting, or proxy therefor, shall be
entitled to one vote for each $1,000 principal amount of
Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled
by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote except as a
Holder of Securities of such series or proxy therefor. Any
meeting of Holders of Securities duly called pursuant to the
provisions of Sections 1202 or 1203 at which a quorum is present
may be adjourned from time to time, and the meeting may be held
as so adjourned without further notice.
SECTION 1207. Voting Procedure.
The vote upon any resolution submitted to any meeting of
Holders of Securities shall be by written ballot on which shall
be subscribed the signatures of the Holders of Securities
entitled to vote at such meeting, or proxies therefor, and on
which shall be inscribed an identifying number or numbers or to
which shall be attached a list of identifying numbers of the
Securities so held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the
meeting their verified written reports in duplicate of all votes
cast at the meeting. A record in duplicate of the proceedings of
each meeting of Holders of Securities shall be prepared by the
secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more
Persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was mailed as
provided in Section 1202 and, if applicable, Section 1205. The
record shall be signed and verified by the permanent chairman and
secretary of the meeting and one of the duplicates shall be
delivered to the Company and the other to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting.
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
SECTION 1208. Written Consent in Lieu of Meetings.
The written authorization or consent by the Holders of the
requisite percentage in aggregate principal amount of Securities
of one or more series herein provided, entitled to vote at any
such meeting, evidenced as provided in Section 104 and filed with
the Trustee, shall be effective in lieu of a meeting of the
Holders of Securities of such series, with respect to any matter
provided for in this Article Twelve.
SECTION 1209. No Delay of Rights by Meeting.
Nothing in this Article contained shall be deemed or
construed to authorize or permit, by reason of any call of a
meeting of Holders of Securities of any or all series or any
rights expressly or impliedly conferred hereunder to make such
call, any hindrance or delay in the exercise of any right or
rights conferred upon or reserved to the Trustee or the Holders
of Securities of any or all such series under any provisions of
this Indenture or the Securities.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Company's Option to Effect Defeasance or
Covenant Defeasance.
The Company may elect, at its option by Board Resolution at
any time, to have either Section 1302 or Section 1303 applied to
the Outstanding Securities of any series designated pursuant to
Section 301 as being defeasible pursuant to this Article Thirteen
(hereinafter called "Defeasible Series"), upon compliance with
the conditions set forth below in this Article Thirteen.
SECTION 1302. Defeasance and Discharge.
Upon the Company's exercise of the option provided in
Section 1301 to have this Section 1302 applied to the Outstanding
Securities of any Defeasible Series, the Company shall be deemed
to have been discharged from its obligations with respect to the
Outstanding Securities of such series as provided in this Section
on and after the date the conditions set forth in Section 1304
are satisfied (hereinafter called "Defeasance"). For this
purpose, such Defeasance means that the Company shall be deemed
to have paid and discharged the entire indebtedness represented
by the Outstanding Securities of such series and to have
satisfied all of its other obligations under the Securities of
such series and this Indenture insofar as the Securities of such
series are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until
otherwise terminated or discharged hereunder: (1) the rights of
Holders of Securities of such series to receive, solely from the
trust fund described in Section 1304 and as more fully set forth
in such Section, payments in respect of the principal of and any
premium and interest on such Securities of such series when
payments are due, (2) the Company's obligations with respect to
the Securities of such series under Section 304, 305, 306, 1102
and 1103, (3) the rights, powers, trusts, duties and immunities
of the Trustee hereunder, including, without limitation, Section
707, and (4) this Article Thirteen. Subject to compliance with
this Article Thirteen, the Company may exercise its option
provided in Section 1301 to have this Section 1302 applied to the
Outstanding Securities of any Defeasible Series notwithstanding
the prior exercise of its option provided in Section 1301 to have
Section 1303 applied to the Outstanding Securities of such
series.
SECTION 1303. Covenant Defeasance.
Upon the Company's exercise of the option provided in
Section 1301 to have this Section 1303 applied to the Outstanding
Securities of any Defeasible Series: (i) the Company shall be
released from its obligations under Sections 1104 and 1105, and
(ii) the occurrence of any event specified in Sections 601(4)
(with respect to Sections 1104 and 1105), 601(5) and 601(8) shall
be deemed not to be or result in an Event of Default, in each
case with respect to the Outstanding Securities of such series as
provided in this Section on and after the date the conditions set
forth in Section 1304 are satisfied (hereinafter called "Covenant
Defeasance"). For this purpose, such Covenant Defeasance means
that the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set
forth in any such specified Section (to the extent so specified
in the case of Section 601(4)), whether directly or indirectly by
reason of any reference elsewhere herein to any such Section or
by reason of any reference in any such Section to any other
provision herein or in any other document, but the remainder of
this Indenture and the Securities of such series shall be
unaffected thereby.
SECTION 1304. Conditions to Defeasance of Covenant
Defeasance.
The following shall be the conditions to application of
either Section 1302 or Section 1303 to the Outstanding Securities
of any Defeasible Series:
(1) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee that
satisfies the requirements contemplated by Section 709 and agrees
to comply with the provisions of this Article Thirteen applicable
to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of Outstanding
Securities of such series, (A) money in an amount, or (B) U.S.
Government Obligations that through the scheduled payment of
principal and interest in respect thereof in accordance with
their terms will provide, not later than one day before the due
date of any payment, money in an amount, or (C) a combination
thereof, in each case sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or any
such other qualifying trustee) to pay and discharge each
installment of principal (including mandatory sinking fund
payments) of, and premium (not relating to optional redemption),
if any, and interest on, the Outstanding Securities of such
series on the dates such installments of principal of, and
premium (not relating to optional redemption), if any, or
interest are due.
(2) In the case of an election under Section 1302, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since
the date first set forth hereinabove, there has been a change in
the applicable Federal income tax law, in either case (A) or (B)
to the effect that, and based thereon such opinion shall confirm
that, the Holders of the Outstanding Securities of such series
will not recognize gain or loss for Federal income tax purposes
as a result of the deposit, Defeasance and discharge to be
effected with respect to the Securities of such series and will
be subject to Federal income tax on the same amount, in the same
manner and at the same times as would be the case if such
deposit, Defeasance and discharge were not to occur.
(3) In the case of an election under Section 1303, the
Company shall have delivered to the Trustee as Opinion of Counsel
to the effect that the Holders of the Outstanding Securities of
such series will not recognize gain or loss for Federal income
tax purposes as a result of the deposit and Covenant Defeasance
to be effected with respect to the Securities of such series and
will be subject to Federal income tax on the same amount, in the
same manner and at the same times as would be the case if such
deposit and Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that the Securities of such
series, if then listed on any securities exchange will not be
delisted as a result of such deposit.
(5) No Event of Default or event that (after notice or
lapse of time or both) would become an Event of Default shall
have occurred and be continuing at the time of such deposit or,
with regard to any Event of Default or any such event specified
in Sections 601(6) and (7), at any time on or prior to the 90th
day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until after such 90th
day).
(6) Such Defeasance or Covenant Defeasance shall not
cause the Trustee to have a conflicting interest within the
meaning of the Trust Indenture Act (assuming all Securities are
in default within the meaning of the such Act).
(7) Such Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default
under, any other agreement or instrument to which the Company is
a party or by which it is bound.
(8) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent with respect to such Defeasance or
Covenant Defeasance have been complied with.
(9) Such Defeasance or Covenant Defeasance shall not
result in the trust arising from such deposit constituting an
investment company within the meaning of the Investment Company
Act of 1940, as amended, unless such trust shall be qualified
under such Act or exempt from regulation thereunder.
(10) Such deposit pursuant to such Defeasance or
Covenant Defeasance will not result in a breach or violation of,
or constitute a default under, this Indenture or any other
agreement or instrument to which the Company is a party or by
which it is bound.
SECTION 1305. Deposited Money and U.S. Government
Obligations to be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the next to the last paragraph
of Section 1103, all money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee or
other qualifying trustee (solely for purposes of this Section and
Section 1306, the Trustee and any such other trustee are referred
to collectively as the "Trustee") pursuant to Section 1304 in
respect of the Securities of any Defeasible Series shall be held
in trust and applied by the Trustee, in accordance with the
provisions of the Securities of such series and this Indenture,
to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of Securities of such
series, of all sums due and to become due thereon in respect of
principal and any premium and interest, but money so held in
trust need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 1304 or the
principal and interest received in respect thereof other than any
such tax, fee or other charge that by law is for the account of
the Holders of Outstanding Securities.
Anything in this Article Thirteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company
from time to time upon Company Request any money or U.S.
Government Obligations held by it as provided in Section 1304
with respect to Securities of any Defeasible Series that, in the
opinion of a nationally recognized firm of independent public
accountants expressed in written certification thereof delivered
to the Trustee, are in excess of the amount hereof that would
then be required to be deposited to effect as equivalent
Defeasance or Covenant Defeasance with respect to the Securities
of such series.
SECTION 1306. Reinstatement.
If the Trustee of the Paying Agent is unable to apply any
money in accordance with this Article Thirteen with respect to
the Securities of any series by reason of any order or judgement
of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company's
obligations under this Indenture and the Securities of such
series shall be revived and reinstated as though no deposit had
occurred pursuant to this Article Thirteen with respect to
Securities of such series until such time as the Trustee or
Paying Agent is permitted to apply all money held intrust
pursuant to Section 1305 with respect to Securities of such
series in accordance with this Article Thirteen; provided,
however, that if the Company makes any payment of principal of or
any premium or interest on any Security of such series following
the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of Securities of such
series to receive such payment from the money so held in trust.
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
CBI INDUSTRIES, INC.
Corporate Seal By /S/ Buel T. Adams
[Authorized Officer]
Attest:
By /S/ R.K. Doty
Its: Assistant Secretary
CHEMICAL BANK, as Trustee
Corporate Seal By /S/ James M. Foley
[Authorized Officer]
Attest:
By /S/ Yvonne D. Benn
Its: Trust Officer
<PAGE>
STATE OF ILLINOIS )
) SS:
COUNTY OF COOK )
On this 19th day of March, 1994 before me appeared Buel T.
Adams, to me personally known, who, being by me duly sworn, did
say that he is Vice President & Treasurer of CBI INDUSTRIES,
INC., one of the corporations described in and which executed the
instrument; that one of the seals affixed to said instrument is
the corporate seal of said corporation, and that said instrument
was signed and sealed on behalf of said corporation by authority
of its Board of Directors; and said Buel T. Adams acknowledged
said instrument to be the free act and deed of said corporation.
[NOTARIAL SEAL]
/S/ Susan M. Backhaus
Notary Public
My Commission Expires 6/15/94
<PAGE>
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On this 15th day of April, 1994 before me, G. John Kirsch, a
Notary Public in and for said State, residing therein, duly
commissioned and sworn, personally appeared James M. Foley known
to me to be an Assistant Vice President, and Yvonne D. Benn,
known to me to be a Trust Officer of CHEMICAL BANK, a New York
corporation described in and that executed the within instrument
and also known to me to be the persons who executed the within
instrument on behalf of said corporation therein named, and
acknowledged to me that such corporation executed the same
pursuant to its By-Laws or a resolution of its Board of
Directors.
IN WITNESS WHEREOF, I have hereunto sent my hand and affixed
my official seal the day and year in this certificate first above
written.
[NOTARIAL SEAL]
/S/ G. John Kirsch
Notary Public, State of New York
No.
Qualified in New York County
Commission Expires
EXHIBIT 4.2
CUSIP NO.
REGISTERED NO. FLR PRINCIPAL AMOUNT:
________________
CBI INDUSTRIES, INC.
MEDIUM-TERM NOTE, SERIES A
Due Nine Months or More from Date of Issue
(Floating Rate)
If the registered owner of this Note (as indicated below) is
The Depository Trust Company (the "Depositary") or a nominee of
the Depositary, this Note is a global Note and the following
legend is applicable: Unless this certificate is presented by an
authorized representative of The Depository Trust Company (55
Water Street, New York, New York) to the issuer or its agent for
registration of transfer, exchange or payment, and any
certificate issued is registered in the name of CEDE & CO., or
such other name as requested by an authorized representative of
The Depository Trust Company and any payment is made to CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered
owner hereof, CEDE & CO., has an interest herein.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID", "YIELD TO
MATURITY" AND "INITIAL ACCRUAL PERIOD OID" (COMPUTED
UNDER THE APPROXIMATE METHOD BELOW) WILL BE
COMPUTED SOLELY FOR PURPOSES OF APPLYING THE
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES
THE FOLLOWING SUMMARY OF TERMS IS SUBJECT TO THE INFORMATION
SET FORTH ON THE REVERSE HEREOF:
<TABLE>
<S> <S> <S>
ISSUE PRICE:
ORIGINAL ISSUE DATE: INITIAL INTEREST RATE: MATURITY
DATE:
SPECIFIED CURRENCY: OPTION TO ELECT PAYMENT AUTHORIZED
DENOMINATIONS
IN U.S. DOLLARS (only
applicable if Specified (if
Specified Currency is U.S.
Currency is other than dollars):
U.S. dollars)
__ Yes __ No $1,000 and
any integral
multiple of
$1,000 in excess
thereof
INDEXED CURRENCY:
(if
Specified Currency is
other than
U.S. dollars):
CURRENCY DETERMINATION THIS
SECURITY IS A:
AGENT:
__ Global
Security
__
Certificated Security
(only
applicable if Specified
Currency is
other than U.S.
dollars)
INTEREST RESET PERIOD: INTEREST RESET DATES: INTEREST
DETERMINATION DATES:
CALCULATION DATES: ACCRUED INTEREST FACTOR:
INTEREST PAYMENT INTEREST PAYMENT DATES:
PERIOD:
INDEX MATURITY: SPREAD (plus or minus): SPREAD
MULTIPLIER:
MAXIMUM RATE: MINIMUM RATE:
CALCULATION AGENT: BASE RATE:
(check one)
__
Commercial Paper Rate
__ Federal
Funds Rate
__ CD Rate
__ 11th
District Cost of
Funds Rate
EXCHANGE RATE AGENT: __ Kenny
Rate
__ LIBOR
__ LIBOR
REUTERS
__ LIBOR
TELERATE
__ Prime
Rate
__ Treasury
Rate
__ CMT Rate
__ Other
_________________
(see
attached)
OPTIONAL REDEMPTION: INITIAL REDEMPTION REDEMPTION
PRICE(S): Initially
__ Yes __ No DATE: ___% of
Principal Amount and
declining
by ___% of the
Principal
Amount on each
anniversary
of the Initial
Redemption
Date until the
Redemption
Price is 100% of
the
Principal Amount
OPTION TO ELECT OPTIONAL REPAYMENT OPTIONAL
REPAYMENT
REPAYMENT: DATE(S): PRICE(S):
__ Yes __ No
REPAYMENT PROVISIONS:
EXTENDIBLE MATURITY AMORTIZING NOTE: DISCOUNTED
SECURITY:
NOTE: __ Yes
__ No
DEPOSITARY: OTHER PROVISIONS:
</TABLE>
If this Security was issued with "original issue discount"
for purposes of Section 1273 of the Internal Revenue Code of
1986, as amended, the following shall be completed:
<TABLE>
<S> <S> <S>
ORIGINAL ISSUE DISCOUNT TOTAL AMOUNT OF OID: ISSUE PRICE
(expressed as a
SECURITY: percentage
of aggregate
__ Yes __ No principal
amount):
YIELD TO MATURITY: INITIAL ACCRUAL PERIOD METHOD USED
TO DETERMINE YIELD
OID: FOR INITIAL
ACCRUAL PERIOD:
__
Approximate __ Exact
</TABLE>
<PAGE>
<PAGE>
CBI INDUSTRIES, INC., a Delaware corporation (herein called
the "Company", which term includes any successor Person under the
Indenture referred to on the reverse hereof), for value received,
hereby promises to pay to
___________________________________________, or registered
assigns, the principal sum of
______________________________________ on the Maturity Date shown
above, and to pay interest thereon from and including the
Original Issue Date shown above or from and including the last
date in respect of which interest has been paid, as the case may
be, to but excluding the next succeeding Interest Payment Date;
provided, however, that if this Note has a daily or weekly
Interest Reset Period, as shown above, such interest will be paid
from and including the Original Issue Date shown above or from
and including the last date in respect of which interest has been
paid, as the case may be, to and including the regular record
date immediately preceding the applicable Interest Payment Date,
except that at maturity the interest payments will include
accrued interest from and including the Original Issue Date, or
from and including the last date in respect of which interest has
been paid, as the case may be, to, but excluding the Maturity
Date. Interest will be paid on the Interest Payment Dates shown
above, commencing with the first such Interest Payment Date next
succeeding the Original Issue Date shown above (except as
provided below), at the rate per annum determined in accordance
with the provisions on the reverse hereof, depending on the Base
Rate specified above and the Spread, if any, or Spread
Multiplier, if any, until the principal hereof is paid or made
available for payment, and interest shall accrue on any overdue
principal and on any overdue installment of interest (to the
extent that the payment of such interest shall be legally
enforceable) at the rate per annum in effect at the time such
principal or installment of interest, as the case may be, was due
and payable. The interest so payable and punctually paid or duly
provided for on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Note (or
one or more predecessor Notes) is registered at the close of
business on the regular record date for such interest, which
shall be the fifteenth day (whether or not a Business Day, as
defined) next preceding such Interest Payment Date; provided,
however, that interest payable at the Maturity Date or upon
earlier redemption or repayment will be payable to the Person to
whom principal shall be payable. Payments of principal and
interest on Notes for which payments of principal and interest
are made in equal installments over the life of the security
("Amortizing Notes"), will be made either quarterly on each March
15, June 15, September 15 and December 15 or semiannually on each
June 15 and December 15 as set forth in the applicable Pricing
Supplement, and at maturity or upon earlier redemption or
repayment. If this Note was originally issued between a regular
record date and an Interest Payment Date, the first payment of
interest on this Note will be made on the Interest Payment Date
following the next succeeding regular record date to the
registered owner of this Note on such next succeeding regular
record date. Any interest not punctually paid or duly provided
for shall be payable as provided in the Indenture.
If this Note is denominated in a Specified Currency other
than U.S. dollars, then the Holder may, by delivery of a written
request to the Paying Agent at its principal office in The City
of New York, New York on or prior to the applicable record date
or at least 15 days prior to the Maturity Date, as the case may
be, elect to receive all such payments in U.S. dollars. Such
election will remain in effect until revoked by written notice
received by the Paying Agent not later than on or prior to the
applicable record date or at least 15 days prior to the Maturity
Date, as the case may be (but no such revocation may be made with
respect to payments made on this Note if an Event of Default has
occurred with respect hereto or upon the giving of a notice of
redemption). In addition, if bid quotations for U.S. dollars of
the type specified on the reverse side hereof are not available,
the Currency Determination Agent (which shall be the Company
unless as otherwise set forth above) will be unable to exchange
the Specified Currency for U.S. dollars and payments of principal
and interest will be made in the Specified Currency. If the
Specified Currency is unavailable due to the imposition of
exchange controls or to other circumstances beyond the Company's
control, payments will be made in U.S. dollars as described on
the reverse side hereof.
Payments in U.S. dollars of interest on this Note (other
than interest payable at the Maturity Date or upon earlier
redemption or repayment) will be made by mailing a check to the
Holder at the address of the Holder appearing in the security
register on the applicable record date. Principal and interest
payable in U.S. dollars at the Maturity Date or upon earlier
redemption or repayment in respect of this Note will be paid in
immediately available funds upon surrender of this Note
accompanied by wire transfer instructions at the principal office
of the Paying Agent in the City of New York. Payments in a
Specified Currency other than U.S. dollars of interest and
principal on this Note will be made by wire transfer to an
account with a bank located in the country issuing the Specified
Currency (or with respect to Notes denominated in European
Currency Units, or "ECUs," Brussels), as shall have been
designated by filing the appropriate information with the Trustee
at its Corporate Trust Office at least 15 days prior to the
Interest Payment Date or Maturity Date, as the case may be, by
the Holder, provided that, in the case of payment of principal of
(and premium, if any) and any interest due at the Maturity Date,
the Note is presented to the Paying Agent in time for the Paying
Agent to make such payments in such funds in accordance with its
normal procedures.
If the registered owner of this Note (as indicated above) is
the Depositary or a nominee of the Depositary, this Note is a
global Note and the following legend is applicable except as
specified on the reverse hereof: THIS GLOBAL NOTE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY OR BY A NOMINEE
OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR OF THE DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof and such further provisions
shall for all purposes have the same effect as though fully set
forth at this place.
This Note shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have
been manually signed by or on behalf of the Trustee under the
Indenture referred to on the reverse hereof.
<PAGE>
IN WITNESS WHEREOF, CBI Industries, Inc. has caused this
instrument to be signed in its name by the facsimile signatures
of its duly authorized officers, and has caused a facsimile of
its corporate seal to be affixed hereunto or imprinted hereon.
Dated: CBI INDUSTRIES, INC.
By: /S/ G.L. Schueppert
(Corporate Seal)
Attest:
By: /S/ R.K. Doty
Trustee's Certificate of Authentication
This is one of the Securities of the
series described herein and referred
to in the within-mentioned Indenture.
Chemical Bank, As Trustee
By:______________________________
Authorized Officer<PAGE>
<PAGE>
[REVERSE SIDE OF SECURITIES]
CBI INDUSTRIES, INC.
MEDIUM-TERM NOTE, SERIES A
Section 1. General. This Note is one of a duly authorized
issue of debentures, notes, bonds or other evidences of
indebtedness of the Company (herein called the "Securities"), of
the series hereinafter specified, all issued or to be issued
under and pursuant to an indenture, dated as of March 1, 1994,
between the Company and Chemical Bank, as Trustee (the
"Indenture"), to which Indenture and all indentures supplemental
thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the Holders of the
Notes. The Securities may be issued in one or more series, which
different series may be issued in various aggregate principal
amounts, may mature at different times, may bear interest, if
any, at different rates, may be subject to different redemption
provisions, if any, may be subject to different sinking, purchase
or analogous funds, if any, and may otherwise vary as in the
Indenture provided. This Note is one of a series designated as
"Medium-Term Notes, Series A" of the Company, limited in
aggregate principal amount to U.S. $100,000,000, or its
equivalent at the time of issue in foreign currencies or currency
units, or in such lesser amount as may be reduced by the sale of
Securities of another series. References herein to "Notes" shall
mean the Notes of said Series A.
Section 2. Payments. (a) Interest on this Note will be
payable monthly, quarterly, semiannually or annually (the
"Interest Payment Period") as shown on the face hereof. Except
as provided below or on the face hereof, the date or dates on
which interest will be payable (each an "Interest Payment Date")
will be, if this Note has a daily, weekly or monthly Interest
Reset Date, the third Wednesday of each month; if this Note has a
quarterly Interest Reset Date, the third Wednesday of March,
June, September and December of each year; if this Note has a
semiannual Interest Reset Date, the third Wednesday of each of
the two months of each year specified on the face hereof; and if
this Note has an annual Interest Reset Date, the third Wednesday
of one month of each year specified on the face hereof. Unless
otherwise specified on the face hereof, if any Interest Reset
Date for this Note would otherwise be a day that is not a
Business Day, such Interest Payment Date shall be postponed to
the next day that is a Business Day except that, if the Base Rate
indicated on the face of this Note is LIBOR and if such Business
Day is in the next succeeding calendar month, such Interest
Payment Date shall be the immediately preceding Business Day.
The rate of interest on this Note will be reset daily,
weekly, monthly, quarterly, semiannually or annually (an
"Interest Reset Date"), as specified on the face hereof. Unless
otherwise specified on the face hereof, the Interest Reset Date
will be, if the rate of interest on this Note resets daily, each
Business Day; if the rate of interest on this Note (other than
Treasury Rate Notes) resets weekly, Wednesday of each week; in
the case of Treasury Rate Notes that reset weekly, Tuesday of
each week (except as provided below); if the rate of interest on
this Note resets monthly, the third Wednesday of each month (with
the exception of monthly reset 11th District Cost of Funds Rate
Notes, which will reset on the first calendar day of the month);
if the rate of interest on this Note resets quarterly, the third
Wednesday of March, June, September and December; if the rate of
interest on this Note resets semiannually, the third Wednesday of
each of the two months of each year specified on the face hereof;
and if the rate of interest on this Note resets annually, the
third Wednesday of the month of each year specified on the face
hereof. If any Interest Reset Date for this Note would otherwise
be a day that is not a Business Day, such Interest Reset Date
shall be postponed to the next succeeding Business Day, except
that if the Base Rate indicated on the face of this Note is LIBOR
and such Business Day is in the next succeeding calendar month,
such Interest Reset Date shall be the next preceding Business
Day. If the Base Rate indicated on the face of this Note is the
Treasury Rate and if an auction of Treasury bills (as hereinafter
defined) falls on a day that is an Interest Reset Date for this
Note, the Interest Reset Date shall be the following day that is
a Business Day.
As used herein, "Business Day" means any Monday, Tuesday,
Wednesday, Thursday or Friday that in The City of New York is not
a day on which banking institutions are authorized or required by
law, regulation, or executive order to close and, with respect to
Notes as to which LIBOR is an applicable Base Rate, is also a
London Business Day. As used herein, "London Business Day" means
any day (a) on which dealings in deposits in the Specified
Currency are transacted in the London interbank market, (b) if
the Indexed Currency is other than the ECU, on which dealings in
deposits in such Indexed Currency are transacted in the London
interbank market or (c) if the Indexed Currency is the ECU, that
is not designated as an ECU Non-Settlement Day by the ECU Banking
Association in Paris or otherwise generally regarded in the ECU
interbank market as a day on which payments on ECUs shall not be
made.
(b) If this Note is denominated in other than U.S. dollars
and if the Holder has made the election described in paragraph
(c) below, payment in respect of this Note shall be made in U.S.
dollars based on the highest indicated bid quotation for the
purchase of U.S. dollars for the Specified Currency obtained by
the Currency Determination Agent at approximately 11:00 A.M., New
York City time, on the Second Business Day next preceding the
applicable payment date (the "Conversion Date") from the bank
composite or multi-contributor pages of the Quoting Source for
three (or two if three are not available) major banks in The City
of New York. The first three (or two) such banks selected by the
Currency Determination Agent which are offering quotes on the
Quoting Source will be used. If fewer than two such bid
quotations are available at 11:00 A.M., New York City time, on
the second Business Day next preceding the applicable payment
date, such payment will be based on the noon buying rate in the
City of New York for cable transfers for such Specified Currency
as certified for customs purposes by the Federal Reserve Bank of
New York (the "Market Exchange Rate") as of the second Business
Day next preceding the applicable payment date. If the Market
Exchange Rate for such date is not then available, such payment
will be made in the Specified Currency, unless such Specified
Currency is unavailable due to the imposition of exchange
controls or to other circumstances beyond the Company's control,
in which case payment will be made as described in paragraph (d)
below. As used herein, the "Quoting Source" means Reuters
Monitor Foreign Exchange Service, or if the Currency
Determination Agent determines that such service is not
available, Telerate Monitor Foreign Exchange Service, or if the
Currency Determination Agent determines that neither service is
available, such comparable display or other comparable manner of
obtaining quotations as shall be agreed between the Company and
the Currency Determination Agent. All currency exchange costs
associated with any payment in U.S. dollars on this Note shall be
borne by the Holder hereof by deductions from such payments.
(c) If this Note is denominated in other than U.S.
dollars, the Holder of this Note may elect to receive all such
payments in U.S. dollars as described in paragraph (b) above by
delivery of a written request to the Paying Agent at its
principal office in The City of New York, New York, which must be
received by the Paying Agent on or prior to the applicable record
date or at least 15 calendar days prior to the Maturity Date, as
the case may be. Such election shall remain in effect unless and
until revoked by written notice to the Paying Agent, but the
Paying Agent must receive written notice of any such revocation
on or prior to the applicable record date or at least 15 calendar
days prior to the Maturity Date, as the case may be (but no such
revocation may be made with respect to payments made on this Note
if an Event of Default has occurred with respect hereto or upon
the giving of a notice of redemption). In the absence of
manifest error, all determinations by the Currency Determination
Agent shall be final and binding on the Company and the Holder of
this Note.
(d) If payment of this Note is required to be made in a
Specified Currency (e.g. ECUs) other than U.S. dollars and on a
payment date with respect to this Note such currency is
unavailable, in the good faith judgment of the Company, due to
the imposition of exchange controls or other circumstances beyond
the Company's control, then all payments in respect of this Note
shall be made in U.S. dollars until such currency unit is again
available. Any payment made under such circumstances in U.S.
dollars where the required payment is in a Specified Currency
other than U.S. dollars will not constitute an Event of Default
under the Indenture. The amount of each payment of U.S. dollars
shall be computed on the basis of the equivalent of the currency
unit in U.S. dollars, which shall be determined by the Currency
Determination Agent on the following basis. The component
currencies of the currency unit for this purpose (the "Component
Currencies") shall be the currency amounts that were components
of the currency unit as of the Conversion Date. The equivalent
of the currency unit in U.S. dollars shall be calculated by
aggregating the U.S. dollar equivalents of the Component
Currencies. The U.S. dollar equivalent of each of the Component
Currencies shall be determined by the Currency Determination
Agent on the basis of the Market Exchange Rate for each such
Component Currency that is available as of the third Business Day
prior to the date on which the relevant payment is due and for
each such Component Currency that is unavailable, if any, as of
the Conversion Date for such Component Currency.
If the official unit of any Component Currency is altered by
way of combination or subdivision, the number of units of that
currency as a Component Currency shall be divided or multiplied
in the same proportion. If two or more Component Currencies are
consolidated into a single currency, the amounts of those
currencies as Component Currencies shall be replaced by an amount
in such single currency equal to the sum of the amounts of the
consolidated Component Currencies expressed in such single
currency. If any Component Currency is divided into two or more
currencies, the amount of the original Component Currency shall
be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original
Component Currency.
All determinations referred to above made by the Currency
Determination Agent shall be at its sole discretion (except to
the extent expressly provided herein or on the face hereof that
any determination is subject to approval by the Company) and, in
the absence of manifest error, shall be conclusive for all
purposes and binding on the Holder of this Note and the Company,
and the Currency Determination Agent shall have no liability
therefor.
(e) Interest payments on each Interest Payment Date for
this Note (except if the rate of interest on this Note resets
daily or weekly) will include accrued interest from and including
the Original Issue Date or from and including the last date in
respect of which interest has been paid, as the case may be, to,
but excluding, such Interest Payment Date or Maturity Date. If
the rate of interest on this Note resets daily or weekly,
interest payments will include accrued interest from and
including the Original Issue Date or from and including the last
date in respect of which interest has been paid, as the case may
be, to and including the regular record date immediately
preceding the applicable Interest Payment Date, except that at
the Maturity Date the interest payments will include accrued
interest from and including the Issue Date, or from and including
the last date in respect of which interest has been paid, as the
case may be, to, but excluding, the Maturity Date.
Accrued interest shall be calculated by multiplying the
principal amount of this Note by an accrued interest factor.
Such accrued interest factor will be computed by adding the
interest factors calculated for each day in the period for which
accrued interest is being calculated. Unless otherwise set forth
on the face hereof, the interest factor (rounded upward, if
necessary, to the next higher one hundred-thousandth of a
percent) for each such day is computed by dividing the interest
rate applicable to such day by 360, if the Base Rate indicated on
the face hereof is the Commercial Paper Rate, the Federal Funds
Rate, the CD Rate, the Prime Rate, the 11th District Cost of
Funds Rate or LIBOR or by the actual number of days in the year,
if the Base Rate indicated on the face hereof is the Treasury
Rate or the CMT Rate, or by 365 days if the Base Rate on the face
hereof is the Kenny Rate. The interest rate applicable to any
date that is an Interest Reset Date is the interest rate for such
Interest Reset Date. The interest rate applicable to any other
day is the interest rate for the immediately preceding Interest
Reset Date (or, if none, the Initial Interest Rate, as described
below). Notwithstanding the foregoing, the interest rate hereon
shall not be greater than the Maximum Interest Rate, if any, or
less than the Minimum Interest Rate, if any, shown on the face
hereof. In addition, the interest rate hereon shall in no event
be higher than the maximum interest rate permitted by New York
law as the same may be modified by United States law of general
application.
(f) The interest rate in effect with respect to this Note
from the Issue Date to the first Interest Reset Date (the
"Initial Interest Rate") will be specified on the face hereof.
The interest rate for each subsequent Interest Reset Date will be
determined by the Calculation Agent as follows:
Determination of Commercial Paper Rate. If the Base
Rate is the Commercial Paper Rate as indicated on the face
hereof, the "Commercial Paper Rate" for each Interest Reset
Date will be determined by the Calculation Agent as of the
second Business Day prior to such Interest Reset Date (a
"Commercial Paper Interest Determination Date") and shall be
the Money Market Yield (as defined below) on such date of
the rate for commercial paper having the Index Maturity as
indicated on the face hereof, as such rate shall be
published by the Board of Governors of the Federal Reserve
System in "Statistical Release H.15(519), Selected Interest
Rates", or any successor publication ("H.15(519)"), under
the heading "Commercial Paper." In the event that such rate
is not published prior to 9:00 A.M., New York City time, on
the Calculation Date (as defined below), then the Commercial
Paper Rate shall be the Money Market Yield on such
Commercial Paper Interest Determination Date of the rate for
commercial paper of the specified Index Maturity as
published by the Federal Reserve Bank of New York in its
daily statistical release "Composite 3:30 P.M. Quotations
for U.S. Government Securities" ("Composite Quotations")
under the heading "Commercial Paper." If by 3:00 P.M., New
York City time, on such Calculation Date such rate is not
yet published in Composite Quotations, then the Commercial
Paper Rate for such Commercial Paper Interest Determination
Date shall be the Money Market Yield of the arithmetic mean
of the offered rates as of 11:00 A.M., New York City time,
on such Commercial Paper Interest Determination Date of
three leading dealers of commercial paper in The City of New
York selected by the Calculation Agent for commercial paper
of the specified Index Maturity, placed for an industrial
issuer whose bond rating is "AA", or the equivalent, from a
nationally recognized securities rating agency; provided,
however, that if the dealers selected as aforesaid by the
Calculation Agent are not quoting offered rates as mentioned
in this sentence, the Commercial Paper Rate with respect to
such Commercial Paper Interest Determination Date will be
the Commercial Paper Rate in effect on such Commercial Paper
Interest Determination Date.
"Money Market Yield" shall be a yield calculated in
accordance with the following formula:
Money Market Yield = D X 360 X 100
360 - (D X M)
where "D" refers to the applicable per annum rate for
commercial paper quoted on a bank discount basis and
expressed as a decimal, and "M" refers to the actual number
of days in the interest period for which interest is being
calculated.
The Calculation Date pertaining to a Commercial Paper
Interest Determination Date shall be the earlier of (i) the
tenth calendar day after such Commercial Paper Interest
Determination Date or, if such day is not a Business Day,
the next succeeding Business Day, or (ii) the Business Day
preceding the applicable Interest Payment Date or Maturity
Date, as the case may be.
The interest rate for each such Interest Reset Date
shall be the Commercial Paper Rate applicable to such
Interest Reset Date plus or minus the Spread and/or
multiplied by the Spread Multiplier, as indicated on the
face hereof; however, the interest rate in effect for the
period from the Original Issue Date to the first Interest
Reset Date will be the Initial Interest Rate and the
interest rate in effect for the 10 days immediately prior to
the Maturity Date or earlier redemption or repayment will be
that in effect on the tenth day preceding such Maturity Date
or earlier redemption or repayment. If an Interest Reset
Date would otherwise be a day that is not a Business Day,
the Interest Reset Date shall be postponed to the next day
that is a Business Day.
Determination of Federal Funds Rate. If the Base Rate
is the Federal Funds Rate as indicated on the face hereof,
the "Federal Funds Rate" means, with respect to any Federal
Funds Interest Determination Date, the rate on such date for
Federal funds as published in H.15(519) under the heading
"Federal Funds (Effective)," or, if not so published by 9:00
A.M., New York City time, on the Calculation Date pertaining
to such Federal Funds Interest Determination Date, the
Federal Funds Rate will be the rate on such Federal Funds
Interest Determination Date as published in the Composite
Quotations under the heading "Federal Funds/Effective Rate."
If such rate is not yet published in either H.15(519) or the
Composite Quotations by 3:00 P.M., New York City time, on
the Calculation Date pertaining to such Federal Funds
Interest Determination Date, the Federal Funds Rate for such
Federal Funds Interest Determination Date will be calculated
by the Calculation Agent and will be the arithmetic mean of
the rates for the last transaction in overnight Federal
funds, as of 9:00 A.M., New York City time, on such Federal
Funds Interest Determination Date, arranged by three leading
brokers of Federal funds transactions in The City of New
York selected by the Calculation Agent; provided, however,
that if the brokers selected as aforesaid by the Calculation
Agent are not quoting as set forth above, the Federal Funds
Rate with respect to such Federal Funds Interest
Determination Date will be the Federal Funds Rate in effect
on such Federal Funds Interest Determination Date.
The Federal Funds Interest Determination Date shall be
the second Business Day prior to such Interest Reset Date.
The Calculation Date pertaining to a Federal Funds Interest
Determination Date shall be the earlier of (i) the tenth
calendar day after such Federal Funds Interest Determination
Date or, if such day is not a Business Day, the next
succeeding Business Day, or (ii) the Business Day preceding
the applicable Interest Payment Date or Maturity Date, as
the case may be.
The interest rate for each such Interest Reset Date
shall be the Federal Funds Rate plus or minus the Spread
and/or multiplied by the Spread Multiplier as indicated on
the face hereof; provided, however, the interest rate in
effect for the period from the Issue Date to the first
Interest Reset Date will be the Initial Interest Rate and
the interest rate in effect for the 10 days immediately
prior to the Maturity Date or earlier redemption or
repayment will be that in effect on the tenth day preceding
such Maturity Date or earlier redemption or repayment. If
an Interest Reset Date would otherwise be a day that is not
a Business Day, the Interest Reset Date shall be postponed
to the next day that is a Business Day.
Determination of CD Rate. If the Base Rate is the CD
Rate as indicated on the face hereof, the "CD Rate" means,
with respect to any CD Rate Interest Determination Date, the
rate on such date for negotiable certificates of deposit
having the Index Maturity as designated on the face hereof
as published in H.15(519) under the heading "CDs (Secondary
Market)," or, if not so published by 9:00 A.M., New York
City time, on the Calculation Date pertaining to such CD
Rate Interest Determination Date, the CD Rate will be the
rate on such CD Rate Interest Determination Date for
negotiable certificates of deposit of the Index Maturity
designated on the face hereof as published by the Federal
Reserve Bank of New York in the Composite Quotations under
the heading "Certificates of Deposit." If such rate is not
yet published by 3:00 P.M., New York City time, on the
Calculation Date pertaining to such CD Rate Interest
Determination Date, the CD Rate for such CD Rate Interest
Determination Date will be calculated by the Calculation
Agent and will be the arithmetic mean of the secondary
market offered rates as of 10:00 A.M., New York City time,
on such CD Rate Interest Determination Date, for
certificates of deposit in the denomination of $5,000,000
with a remaining maturity closest to the Index Maturity
designated on the face hereof of three leading nonbank
dealers in negotiable U.S. dollar certificates of deposit in
The City of New York selected by the Calculation Agent for
negotiable certificates of deposit of major United States
money center banks of the highest credit standing (in the
market for negotiable certificates of deposit); provided,
however, that if the dealers selected as aforesaid by the
Calculation Agent are not quoting as set forth above, the CD
Rate with respect to such CD Rate Interest Determination
Date will be the CD Rate in effect on such CD Rate Interest
Determination Date.
The CD Rate Interest Determination Date shall be the
second Business Day prior to such Interest Reset Date. The
Calculation Date pertaining to a CD Rate Interest
Determination Date shall be the earlier of (i) the tenth
calendar day after such CD Rate Interest Determination Date
or, if such day is not a Business Day, the next succeeding
Business Day, or (ii) the Business Day preceding the
applicable Interest Payment Date or Maturity Date, as the
case may be.
The interest rate for each such Interest Reset Date
shall be the CD Rate plus or minus the Spread and/or
multiplied by the Spread Multiplier as indicated on the face
hereof; provided, however, the interest rate in effect for
the period from the Issue Date to the first Interest Reset
Date will be the Initial Interest Rate and the interest rate
in effect for the 10 days immediately prior to the Maturity
Date or earlier redemption or repayment will be that in
effect on the tenth day preceding such Maturity Date or
earlier redemption or repayment. If an Interest Reset Date
would otherwise be a day that is not a Business Day, the
Interest Reset Date shall be postponed to the next day that
is a Business Day.
Determination of 11th District Cost of Funds Rate. If
the Base Rate is the 11th District Cost of Funds Rate as
indicated on the face hereof, the "11th District Cost of
Funds Rate" means, with respect to any 11th District Cost of
Funds Interest Determination Date, the rate equal to the
monthly weighted average cost of funds for the calendar
month preceding such 11th District Cost of Funds Interest
Determination Date as set forth under the caption "11th
District" on Telerate Page 7058 as of 11:00 A.M., San
Francisco time, on such 11th District Cost of Funds Interest
Determination Date. If such rate does not appear on
Telerate Page 7058 on any related 11th District Cost of
Funds Interest Determination Date, the 11th District Cost of
Funds Rate for such 11th District Cost of Funds Interest
Determination Date shall be the monthly weighted average
cost of funds paid by member institutions of the Eleventh
Federal Home Loan Bank District that was most recently
announced (the "Index") by the Federal Home Loan Bank of San
Francisco (the "FHLB of San Francisco") as such cost of
funds for the calendar month preceding the date of such
announcement. If the FHLB of San Francisco fails to
announce such rate for the calendar month next preceding
such 11th District Cost of Funds Interest Determination
Date, then the 11th District Cost of Funds Rate for such
11th District Cost of Funds Interest Determination Date will
be the 11th District Cost of Funds Rate then in effect on
such 11th District Cost of Funds Interest Determination
Date.
The 11th District Cost of Funds Interest Determination
Date shall be the last business day of the month immediately
preceding such Interest Reset Date on which the FHLB of San
Francisco publishes the Index. The Calculation Date
pertaining to an 11th District Cost of Funds Interest
Determination Date shall be the earlier of (i) the tenth
calendar day after such 11th District Cost of Funds Interest
Determination Date or, if such day is not a Business Day,
the next succeeding Business Day, or (ii) the Business Day
preceding the applicable Interest Payment Date or Maturity
Date, as the case may be.
The interest rate for each such Interest Reset Date
shall be the 11th District Cost of Funds Rate plus or minus
the Spread and/or multiplied by the Spread Multiplier as
indicated on the face hereof; provided, however, the
interest rate in effect for the period from the Issue Date
to the first Interest Reset Date will be the Initial
Interest Rate and the interest rate in effect for the 10
days immediately prior to the Maturity Date or earlier
redemption or repayment will be that in effect on the tenth
day preceding such Maturity Date or earlier redemption or
repayment. If an Interest Reset Date would otherwise be a
day that is not a Business Day, the Interest Reset Date
shall be postponed to the next day that is a Business Day.
Determination of Kenny Rate. If the Base Rate is the
Kenny Rate as indicated on the face hereof, the "Kenny Rate"
means, with respect to any Kenny Rate Interest Determination
Date, the high grade weekly index (the "Weekly Index") on
such date made available by Kenny Information Systems
("Kenny") to the Calculation Agent. The Weekly Index is,
and shall be, based upon 30 day yield evaluations at par of
bonds, the interest on which is exempt from Federal income
taxation under the Internal Revenue Code of 1986, as
amended, of not less than five high grade component issuers
selected by Kenny which shall include, without limitation,
issuers of general obligation bonds. The specific issuers
included among the component issuers may be changed from
time to time by Kenny in its discretion. The bonds on which
the Weekly Index is based shall not include any bonds on
which the interest is subject to a minimum tax or similar
tax under the Internal Revenue Code of 1986, as amended,
unless all tax-exempt bonds are subject to such tax. In the
event Kenny ceases to make available such Weekly Index, a
successor indexing agent will be selected by the Calculation
Agent, such index to reflect the prevailing rate for bonds
rated in the highest short-term rating category by Moody's
Investors Service, Inc. and Standard & Poor's Corporation in
respect of issuers most closely resembling the high grade
component issuers selected by Kenny for its Weekly Index,
the interest on which is (A) variable on a weekly basis, (B)
exempt from Federal income taxation under the Internal
Revenue Code of 1986, as amended, and (c) not subject to a
minimum tax or similar tax under the Internal Revenue Code
of 1986, as amended, unless all tax-exempt bonds are subject
to such tax. If such successor indexing agent is not
available, the rate for any Kenny Rate Interest
Determination Date shall be 60.4% of the rate determined if
the Treasury Rate option had been originally selected.
The Kenny Rate Interest Determination Date shall be the
second Business Day prior to such Interest Reset Date. The
Calculation Date pertaining to a Kenny Rate Interest
Determination Date shall be the earlier of (i) the tenth
calendar day after such Kenny Rate Interest Determination
Date or, if such day is not a Business Day, the next
succeeding Business Day, or (ii) the Business Day preceding
the applicable Interest Payment Date or Maturity Date, as
the case may be.
The interest rate for each such Interest Reset Date
shall be the Kenny Rate plus or minus the Spread and/or
multiplied by the Spread Multiplier as indicated on the face
hereof; provided, however, the interest rate in effect for
the period from the Issue Date to the first Interest Reset
Date will be the Initial Interest Rate and the interest rate
in effect for the 10 days immediately prior to the Maturity
Date or earlier redemption or repayment will be that in
effect on the tenth day preceding such Maturity Date or
earlier redemption or repayment. If an Interest Reset Date
would otherwise be a day that is not a Business Day, the
Interest Reset Date shall be postponed to the next day that
is a Business Day.
Determination of LIBOR. If the Base Rate is LIBOR as
indicated on the face hereof, "LIBOR" for each such Interest
Reset Date will be determined as follows:
(i) On the second London Business Day prior to the
Interest Reset Date (a "LIBOR Interest
Determination Date") relating to a LIBOR Note,
either, as specified on the face hereof: (a) if
"LIBOR Reuters" is specified on the face hereof,
the arithmetic mean of the offered rates for
deposits in the Designated LIBOR Currency having
the Index Maturity specified on the face hereof,
commencing on the second London Business Day
immediately following the LIBOR Interest
Determination Date, which appear on the Reuters
Screen LIBO Page as of 11:00 A.M., London time, on
the LIBOR Interest Determination Date, if at least
two such offered rates appear on the Reuters
Screen LIBO Page ("LIBOR Reuters"), or (b) if
"LIBOR Telerate" is specified on the face hereof,
the rate for deposits in the Designated LIBOR
Currency having the Index Maturity specified on
the face hereof, commencing on the second London
Business Day immediately following such LIBOR
Interest Determination Date, that appears on the
Telerate Page 3750 as of 11:00 A.M., London time,
on that LIBOR Interest Determination Date ("LIBOR
Telerate"). Unless otherwise indicated on the
face hereof, "Reuters Screen LIBO Page" means the
display designated as Page "LIBO" on the Reuters
Monitor Money Rate Service (or such other page as
may replace the LIBO page on that service for the
purpose of displaying London interbank offered
rates of major banks). "Telerate Page 3750" means
the display designated as page "3750" on the
Telerate Service (or such other page as may
replace the 3750 page on that service or such
other service or services as may be nominated by
the British Bankers' Association (the
"Association") for the purpose of displaying
London interbank offered rates for U.S. dollar
deposits). In the case where (a) above applies,
if fewer than two offered rates appear on the
Reuters Screen LIBO Page, LIBOR in respect of that
Interest Reset Date will be determined as if the
parties had specified the rate described in (ii)
below (unless the specified Reuters Screen LIBO
Page by its terms provides only for a single rate,
in which case such single rate shall be used), or,
in the case where (b) above applies if no rate
appears on the Telerate Page 3750, as applicable,
LIBOR in respect of that Interest Reset Date will
be determined as if the parties had specified the
rate described in (ii) below.
(ii) With respect to any LIBOR Interest Determination
Date on which this provision applies, the
Calculation Agent will request the principal
London office of each of four major banks in the
London interbank market selected by the
Calculation Agent to provide the Calculation Agent
with its offered rate quotation for deposits in
the Designated LIBOR Currency for the period of
the Index Maturity specified on the face hereof,
commencing on the second London Business Day
immediately following such LIBOR Interest
Determination Date, to prime banks in the London
interbank market as of 11:00 A.M., London time, on
such LIBOR Interest Determination Date and in a
principal amount that is representative for a
single transaction in such Designated LIBOR
Currency in such market at such time. If at least
two such quotations are provided, LIBOR for such
LIBOR Interest Determination Date will be the
arithmetic mean of such quotations. If fewer than
two quotations are provided, LIBOR for such LIBOR
Interest Determination Date will be the arithmetic
mean of the rates quoted as of 11:00 A.M. in the
applicable Principal Financial Center, on such
LIBOR Interest Determination Date by three major
banks in such Principal Financial Center selected
by the Calculation Agent for loans in the
Designated LIBOR Currency to leading banks having
the specified Index Maturity designated on the
face hereof in a principal amount that is
representative for a single transaction in such
Designated LIBOR Currency in such market at such
time; provided, however, that if the banks
selected as aforesaid by the Calculation Agent are
not quoting as mentioned in this sentence, LIBOR
determined on such LIBOR Interest Determination
Date will be LIBOR then in effect on such LIBOR
Interest Determination Date.
The Calculation Date pertaining to a LIBOR Interest
Determination Date shall be the earlier of (i) the tenth
calendar day after the LIBOR Interest Determination Date or,
if such day is not a Business Day, the next succeeding
Business Day, or (ii) the Business Day preceding the
applicable Interest Payment Date or Maturity Date, as the
case may be.
The interest rate for each such Interest Reset Date
shall be LIBOR plus or minus the Spread and/or multiplied by
the Spread Multiplier as indicated on the face hereof;
provided, however, the interest rate in effect for the
period from the Issue Date to the first Interest Reset Date
will be the Initial Interest Rate and the interest rate in
effect for the 10 days immediately prior to the Maturity
Date or earlier redemption or repayment will be that in
effect on the tenth day preceding such Maturity Date or
earlier redemption or repayment. If an Interest Reset Date
would otherwise be a day that is not a Business Day, the
Interest Reset Date shall be postponed to the next day that
is a Business Day, except that, in the case of a LIBOR Note,
if such Business Day is in the next succeeding calendar
month, such Interest Reset Date shall be the immediately
preceding Business Day.
"Designated LIBOR Currency" means, as with respect to
any LIBOR Note, the currency (including a composite
currency), if any, designated on this Note and the
applicable Pricing Supplement as the Designated LIBOR
Currency. If no such currency is designated on this Note
and the applicable Pricing Supplement, the Designated LIBOR
Currency shall be U.S. dollars.
"Principal Financial Center" means, as with respect to
any LIBOR Note, unless otherwise specified in this Note and
the applicable Pricing Supplement, the capital city of the
country that issues as its legal tender the Designated LIBOR
Currency of this Note, except that with respect to U.S.
dollars and ECUs, the Principal Financial Center shall be
the City of New York and Brussels, respectively.
Determination of Prime Rate. If the Base Rate is the
Prime Rate as indicated on the face hereof, the "Prime Rate"
means, with respect to any Prime Rate Interest Determination
Date, the rate set forth in H.15(519) for such date opposite
the caption "Bank Prime Loan." If such rate is not yet
published by 9:00 A.M., New York City time, on the
Calculation Date pertaining to such Prime Rate Interest
Determination Date, the Prime Rate will be calculated by the
Calculation Agent and will be the arithmetic mean of the
rates of interest publicly announced by each bank named on
the Reuters Screen NYMF Page (as defined below) as such
bank's prime rate or base lending rate as in effect for such
Prime Rate Interest Determination Date as quoted on the
Reuters Screen NYMF Page on such Prime Rate Interest
Determination Date, or, if fewer than four such rates appear
on the Reuters Screen NYMF Page for such Prime Rate Interest
Determination Date, the rate shall be the arithmetic mean of
the prime rates quoted on the basis of the actual number of
days in the year divided by 360 as of the close of business
on such Prime Rate Interest Determination Date by at least
two of the three major money center banks in The City of New
York selected by the Calculation Agent from which quotations
are requested. If fewer than two quotations are provided,
the Prime Rate for such Prime Rate Interest Determination
Date shall be calculated by the Calculation Agent and shall
be determined as the arithmetic mean on the basis of the
prime rates in The City of New York on such date by the
appropriate number of substitute banks or trust companies
organized and doing business under the laws of the United
States, or any state thereof, in each case having total
equity capital of at least U.S. $500 million and being
subject to supervision or examination by federal or state
authority, selected by the Calculation Agent to quote such
rate or rates; provided, however, that if the Prime Rate is
not published in H.15(519) and the banks or trust companies
selected as aforesaid are not quoting as mentioned in this
sentence, the "Prime Rate" with respect to such Prime Rate
Interest Determination Date will be the interest rate
otherwise in effect on such Prime Rate Interest
Determination Date. "Reuters Screen NYMF Page" means the
display designated as page "NYMF" on the Reuters Monitor
Money Rates Service (or such other page as may replace the
page NYMF on that service for the purpose of displaying
prime rates or base lending rates of major United States
banks).
The Prime Rate Interest Determination Date shall be the
Second Business Day prior to such Interest Reset Date. The
Calculation Date pertaining to a Prime Rate Interest
Determination Date shall be the earlier of (i) the tenth
calendar day after such Prime Rate Interest Determination
Date or, if such day is not a Business Day, the next
succeeding Business Day, or (ii) the Business Day preceding
the applicable Interest Payment Date or Maturity Date, as
the case may be.
The interest rate for each such Interest Reset Date
shall be the Prime Rate plus or minus the Spread and/or
multiplied by the Spread Multiplier as indicated on the face
hereof; provided, however, the interest rate in effect for
the period from the Issue Date to the first Interest Reset
Date will be the Initial Interest Rate and the interest rate
in effect for the 10 days immediately prior to the Maturity
Date or earlier redemption or repayment will be that in
effect on the tenth day preceding such Maturity Date or
earlier redemption or repayment. If an Interest Reset Date
would otherwise be a day that is not a Business Day, the
Interest Reset Date shall be postponed to the next day that
is a Business Day.
Determination of Treasury Rate. If the Base Rate is
the Treasury Rate as indicated on the face hereof, the
"Treasury Rate" with respect to any Treasury Rate Interest
Determination Date shall be the rate for the most recent
auction of direct obligations of the United States
("Treasury bills") having the Index Maturity specified on
the Book-Entry Note representing this Treasury Rate Note as
published in H.15(519) under the heading "Treasury bills--
auction average (investment)" or, if not so published by
3:00 P.M., New York City time, on the Calculation Date
pertaining to such Treasury Rate Interest Determination
Date, the auction average rate (expressed as a bond
equivalent, rounded upwards, if necessary, to the next
higher one hundred-thousandth of a percent, on the basis of
a year of 365 or 366 days, as applicable, and applied on a
daily basis) as otherwise announced by the United States
Department of the Treasury. In the event that the results
of the auction of Treasury bills having the specified Index
Maturity are not made available by the Federal Reserve Board
or published or reported as provided above by 3:00 P.M., New
York City time, on such Calculation Date or if no such
auction is held in a particular week, then the Treasury Rate
shall be calculated by the Calculation Agent and shall be a
yield to maturity (expressed as a bond equivalent, rounded
upwards, if necessary, to the next higher one hundred-
thousandth of a percent, on the basis of a year of 365 or
366 days, as applicable, and applied on a daily basis) of
the arithmetic mean of the secondary market bid rates, as of
approximately 3:30 P.M., New York City time, on such
Treasury Rate Interest Determination Date, of three leading
primary United States government securities dealers selected
by the Calculation Agent for the issue of Treasury bills
with a remaining maturity closest to the applicable Index
Maturity; provided, however, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, the Treasury Rate for such
Treasury Rate Interest Determination Date will be the
Treasury Rate in effect on such date.
The Treasury Rate Interest Determination Date shall be
the day of the week in which such Interest Reset Date falls
on which Treasury bills would usually be auctioned.
Treasury bills are usually sold at auction on Monday of each
week, unless that day is a legal holiday, in which case the
auction is usually held on the following Tuesday, except
that such auction may be held on the preceding Friday. If,
as a result of a legal holiday, an auction is so held on the
preceding Friday, such Friday will be the Treasury Rate
Interest Determination Date pertaining to the Interest Reset
Date commencing in the next succeeding week. If an auction
date shall fall on any Interest Reset Date for a Treasury
Rate Note, then such Interest Reset Date shall instead be
the first Business Day immediately following such auction
date. The Calculation Date pertaining to a Treasury Rate
Interest Determination Date will be the earlier of (i) the
tenth calendar day after such Treasury Rate Interest
Determination Date or, if such day is not a Business Day,
the next succeeding Business Day, or (ii) the Business Day
preceding the applicable Interest Payment Date or Maturity
Date, as the case may be.
The interest rate for each such Interest Reset Date
shall be the Treasury Rate plus or minus the Spread and/or
multiplied by the Spread Multiplier as indicated on the face
hereof; provided, however, the interest rate in effect for
the period from the Issue Date to the first Interest Reset
Date will be the Initial Interest Rate and the interest rate
in effect for the 10 days immediately prior to the Maturity
Date or earlier redemption or repayment will be that in
effect on the tenth day preceding such Maturity Date or
earlier redemption or repayment. If an Interest Reset Date
would otherwise be a day that is not a Business Day, the
Interest Reset Date shall be postponed to the next day that
is a Business Day.
Determination of CMT Rate. If the Base Rate is the CMT
Rate as indicated on the face hereof, the "CMT Rate" means,
with respect to any CMT Interest Determination Date, the
rate displayed for the Index Maturity designated in such CMT
Rate Note on Telerate Page 7055 for "Daily Treasury Constant
Maturities and Money Markets/Federal Reserve Board Release
H.15 Mondays approximately 3:45 p.m. EDT," for the
applicable CMT Interest Determination Date (or such other
page as may replace that page on such service for the
purpose of displaying rates or prices comparable to the CMT
Rate, as determined by the Calculation Agent). If such rate
is not so available by 3:00 P.M., New York City time, on the
applicable Calculation Date, then the CMT Rate for such CMT
Interest Determination Date shall be the bond equivalent
yield to Maturity of the arithmetic mean (as calculated by
the Calculation Agent) of the secondary market bid rates as
of 3:00 P.M. New York City time on the applicable CMT
Interest Determination Date, reported, according to their
written records, by three leading primary United States
government securities dealers in The City of New York (each,
a "Reference Dealer") selected by the Calculation Agent, for
the most recently issued direct noncallable fixed rate
Treasury Notes with an original Maturity approximately equal
to the applicable Index Maturity; provided, however, that if
the Calculation Agent is not able to obtain such quotations
from at least three such Reference Dealers, the CMT Rate
will remain the CMT Rate then in effect on such CMT Interest
Determination Date.
The CMT Interest Determination Date shall be the Second
Business Day prior to such Interest Reset Date. The
Calculation Date pertaining to a CMT Interest Determination
Date shall be the earlier of (i) the tenth calendar day
after such CMT Interest Determination Date or, if such day
is not a Business Day, the next succeeding Business Day, or
(ii) the Business Day preceding the applicable Interest
Payment Date or Maturity Date, as the case may be.
The interest rate for each such Interest Reset Date
shall be the CMT Rate plus or minus the Spread and/or
multiplied by the Spread Multiplier as indicated on the face
hereof; provided, however, the interest rate in effect for
the period from the Issue Date to the first Interest Reset
Date will be the Initial Interest Rate and the interest rate
in effect for the 10 days immediately prior to the Maturity
Date or earlier redemption or repayment will be that in
effect on the tenth day preceding such Maturity Date or
earlier redemption or repayment. If an Interest Reset Date
would otherwise be a day that is not a Business Day, the
Interest Reset Date shall be postponed to the next day that
is a Business Day.
The Trustee shall be the Calculation Agent. At the request
of the Holder hereof, the Calculation Agent will provide the
interest rate then in effect and, if determined, the interest
rate which will become effective on the next Interest Reset Date
with respect to this Note.
All percentages resulting from any calculations under this
Note will be rounded, if necessary, to the nearest one hundred
thousandth of a percentage point (with five one-millionths of a
percentage point being rounded upward), all dollar amounts used
in or resulting from such calculation will be rounded to the
nearest cent (with one-half cent being rounded upward), and all
currency or currency unit amounts used in or resulting from any
such calculation in respect of the Notes will be rounded to the
nearest one-hundredth of a unit (with five one-thousandths being
rounded upward).
(g) Until the Notes are paid or payment thereof is duly
provided for, the Company will, at all times, maintain a paying
agent (the "Paying Agent") in The City of New York capable of
performing the duties described herein to be performed by the
Paying Agent. The Company has initially appointed the Trustee as
the Paying Agent. The Company will notify the Holders of such
Notes, in accordance with the Indenture, of any change in the
Paying Agent or its address.
Section 3. Redemption. If so specified on the face hereof,
the Company may at its option redeem this Note in whole or from
time to time in part on or after the date designated as the
Initial Redemption Date on the face hereof at prices declining
from a premium specified on the face hereof, if any, to par
together with accrued interest to the date of redemption. The
Company may exercise such option by causing a notice of such
redemption to be mailed to each Holder by first class mail,
postage prepaid, at least 30 but not more than 60 days prior to
the date of redemption. In the event of redemption of this Note
in part only, a new Note or Notes for the unredeemed portion
hereof shall be issued in the name of the Holder hereof upon the
cancellation hereof. If less than all of the Notes with like
tenor and terms to this Note are to be redeemed, the Notes to be
redeemed shall be selected by the Trustee by such method as the
Trustee shall deem fair and appropriate.
Section 4. Repayment. If so specified on the face hereof,
this Note will be repayable prior to the Maturity Date at the
option of the Holder on the Optional Repayment Dates shown on the
face hereof at a price equal to 100% of the principal amount
hereof or, if this Note is a Discounted Security (as specified on
the face hereof), at the applicable Optional Repayment Price
shown on the face hereof, together with accrued interest to the
date of repayment.
Section 5. Sinking Fund. The Notes will not be subject to
any Sinking Fund.
Section 6. Original Issue Discount Notes. Notwithstanding
anything herein to the contrary, if this Note is an Original
Issue Discount Note, the amount payable in the event of
redemption or repayment, or declaration of acceleration following
an Event of Default, prior to the Maturity Date hereof in lieu of
the principal amount due at the Maturity Date hereof shall be the
Amortized Face Amount of this Note as of the redemption date, the
date of repayment, or the date of declaration of acceleration, as
the case may be. The "Amortized Face Amount" of this Note shall
be the amount equal to (a) the Issue Price (as set forth on the
face hereof) plus (b) that portion of the difference between the
Issue Price and the principal amount hereof that has accrued at
the Yield to Maturity (as set forth on the face hereof) (computed
in accordance with generally accepted United States bond yield
computation principles) at the date as of which the Amortized
Face Amount is calculated but in no event shall the Amortized
Face Amount of this Note exceed its principal amount.
Section 7. Events of Default. In case an Event of Default,
as defined in the Indenture, with respect to the Notes shall have
occurred and be continuing, the Trustee or Holders of at least
25% in principal amount of the Notes outstanding may declare the
principal amount of all the Notes, and upon such declaration such
principal amount of all the Notes, shall become, due and payable,
in the manner, with the effect and subject to the conditions
provided in the Indenture.
Section 8. Modifications and Waivers. The Indenture
contains provisions permitting the Company and the Trustee, with
the written consent of the Holders of not less than a majority in
aggregate principal amount of the Debt Securities of each series
affected (all such Holders voting as a single class) (which
Holders, in the case of a Global Security, shall be the
Depositary appointed by the Company as the Holder of the Global
Security which represents the Debt Securities), evidenced as in
the Indenture provided, to execute supplemental indentures adding
any provisions to or changing in any manner or eliminating any of
the provisions of the Indenture or any supplemental indenture or
modifying in any manner the rights of the Holders of Debt
Securities of such series; provided, however, that no such
supplemental indenture shall (i) change the fixed maturity of any
Debt Securities or reduce the principal amount thereof, reduce
the redemption premium thereon or reduce the rate or extend the
time of payment of interest thereon, without the consent of the
Holder of each Security so affected, or (ii) reduce the aforesaid
percentage of Debt Securities of any series, the consent of the
Holders of which is required for any such supplemental indenture
or for any waiver of default under the Indenture with respect to
the Debt Securities of such series, without the consent of the
Holders of all the Debt Securities of each series so affected.
It is also provided in the Indenture that the Holders of a
majority in aggregate principal amount of the Debt Securities of
any series may on behalf of all the Holders of the Debt
Securities of such series waive compliance with certain covenants
with respect to the Debt Securities of such series or waive any
past default with respect to the Debt Securities of such series
except a default (i) in the payment of the principal of, premium,
if any, or interest on any Debt Securities or in the payment of
any sinking fund installment or analogous obligation, if any is
required, or (ii) a default in respect of a covenant or provision
of the Indenture which cannot be modified or amended without the
consent of the Holder of each Debt Security of such series
affected.
Any such consent or waiver by the Holder of this Note
(unless revoked as provided in the Indenture) shall be conclusive
and binding upon such Holder and upon all future Holders and
owners of this Note and of any Note which may be issued upon the
registration for transfer hereof or in exchange or substitution
herefor, irrespective of whether or not any notation of such
consent or waiver is made upon this Note or such other Notes.
No reference herein to the Indenture and no reference to any
provision of this Note or of the Indenture shall alter or impair
the obligation of the Company, which is absolute and
unconditional, to pay the principal of (and premium, if any) and
interest, if any, on this Note at the place, at the respective
times, at the rate and in the currency herein prescribed.
Section 9. Authorized Denominations. Notes are issuable in
registered form without coupons in the minimum denomination of
$1,000, or the equivalent thereof in the Specified Currency, and
in any larger amount that is an integral multiple of $1,000.
Notes may be exchanged by the Holder hereof without charge except
for any tax or other governmental charge imposed in connection
therewith, for a like aggregate principal amount of Notes of
other authorized denominations in the manner and subject to the
limitations provided in the Indenture at the office or agency to
be maintained by the Company in The City of New York, New York,
or at such other location or locations as may be provided for in
the Indenture.
Section 10. Registration of Transfer. Upon due presentment
for registration of transfer of this Note at the office or agency
of the Company in The City of New York, New York, one or more new
Notes of authorized denominations, for an equal aggregate
principal amount, will be issued to the transferee in exchange
therefor subject to the limitations provided in the Indenture,
without charge except for any tax or other governmental charge
imposed in connection therewith.
If this Note is a global Note (as specified on the face
hereof), this Note is exchangeable only if (w) the Depositary
notifies the Company and the Trustee in writing that it is
unwilling or unable to continue as Depositary for this global
Note or if at any time the Depositary ceases to be a clearing
agency registered under the Securities Exchange Act of 1934, as
amended, and a successor Depositary is not appointed by the
Company within 90 days, (x) the Company in its sole discretion
determines that this Note shall be exchangeable for certificated
Notes in registered form and delivers to the Trustee a written
order as described in the Indenture that this Note shall be so
exchangeable, or (y) there shall have occurred and be continuing
an Event of Default or an event which, with the lapse of time or
the giving of notice, or both, would constitute an Event of
Default with respect to the global Notes represented hereby or
(z) there shall exist such other circumstances, if any, as
specified for this purpose as contemplated by Section 301 of the
Indenture, provided that this permanent global Note shall be
surrendered by the Depositary, or such other depositary as shall
have been specified as provided in the Indenture, to the Trustee,
as the agent for such purpose, to be exchanged, in whole or in
part, for definitive Securities without charge, and the Trustee
shall authenticate and deliver, in exchange for each portion of
this permanent global Note, an equal aggregate principal amount
of definitive Securities, executed by the Company, of the same
series of authorized denominations and of like tenor as the
portion of this global Note to be exchanged, which shall be in
the form of registered Securities as provided in the Company's
written order as described in the Indenture.
Every Security authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, this global
Note other than pursuant to clauses (w), (x), (y) or (z) above,
shall be authenticated and delivered in the form of, and shall
be, a Global Security. Except as provided above, owners of
beneficial interests in this permanent global Note will not be
entitled to receive physical delivery of Notes in certificated
registered form and will not be considered the Holders thereof
for any purpose under the Indenture.
Section 11. Owners. Prior to due presentment for
registration of transfer of this Note, the Company, the Trustee,
any Paying Agent and the Security Registrar may deem and treat
the registered Holder hereof as the absolute owner of this Note
(whether or not this Note shall be overdue and notwithstanding
any notation of ownership or other writing hereon), for the
purpose of receiving payment of, or on account of, the principal
hereof, and, subject to the provisions on the face hereof,
interest hereon, and for all other purposes, and neither the
Company nor the Trustee nor any Paying Agent nor any Security
Registrar shall be affected by any notice to the contrary.
Section 12. No Recourse Against Certain Persons. No
recourse shall be had for the payment of the principal (or
premium, if any) or the interest on this Note, or for any claim
based hereon, or otherwise in respect thereof, or based on or in
respect of the Indenture or any indenture supplemental thereto,
against any incorporator, stockholder, officer, director or
employee, as such, past, present or future, of the Company or any
successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
Section 13. Definitions. All terms used in this Note which
are defined in the Indenture shall have the meanings assigned to
them therein.
Section 14. Governing Law. This Note shall be governed and
construed in accordance with the law of the State of New York.
<PAGE>
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned owner of this Note hereby irrevocably elects
to have the Company repay the principal amount of this Note or
portion hereof below designated at the Optional Repayment Price
indicated on the face hereof.
Dated:_________________ ________________________________
Signature
Sign exactly as name appears on
the front of this Security
[SIGNATURE GUARANTEE - required
only if Securities are to be
issued and delivered to the
other than the registered holder]
Principal amount to be Fill in for registration of
repaid, if amount to be Securities if to be issued
repaid is less the otherwise than to the then
principal amount of this registered holder:
Security (principal amount
remaining must be an Name: __________________________
authorized denomination) Address: ______________________
_______________________
(Please print name and
address including zip
$_________________________ code)
SOCIAL SECURITY OR OTHER TAXPAYER
ID NUMBER
________________________________
<PAGE>
<PAGE>
_______________________________
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they
were written out in full according to applicable laws or
regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and
not as tenants in common
UNIF GIFT MIN ACT -
........................Custodian......................
(Cust) (Minor)
Under Uniform Gifts to Minors Act
_____________________________________
(State)
Additional abbreviations may also be used though not in the
above list.
__________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
_____________________________________________________
_______________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP
CODE OF ASSIGNEE
______________________________________________________________
the within Note and all rights thereunder, hereby irrevocably
constituting and appointing ________________________ attorney to
transfer said Note on the books of the Company, with full power
of substitution in the premises.
Dated: ________________________________
Signature
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH
THE NAME AS WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN
EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE
WHATEVER.
EXHIBIT 4.3
CUSIP NO.
REGISTERED NO. FIXR PRINCIPAL AMOUNT:
________________
CBI INDUSTRIES, INC.
MEDIUM-TERM NOTE, SERIES A
Due Nine Months or More from Date of Issue
(Fixed Rate)
If the registered owner of this Note (as indicated below) is
The Depository Trust Company (the "Depositary") or a nominee of
the Depositary, this Note is a global Note and the following
legend is applicable: Unless this certificate is presented by an
authorized representative of The Depository Trust Company (55
Water Street, New York, New York) to the issuer or its agent for
registration of transfer, exchange or payment, and any
certificate issued is registered in the name of CEDE & CO., or
such other name as requested by an authorized representative of
The Depository Trust Company and any payment is made to CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered
owner hereof, CEDE & CO., has an interest herein.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "YIELD TO
MATURITY" AND "INITIAL ACCRUAL PERIOD OID" (COMPUTED
UNDER THE APPROXIMATE METHOD BELOW) WILL BE
COMPUTED SOLELY FOR PURPOSES OF APPLYING THE
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES
THE FOLLOWING SUMMARY OF TERMS IS SUBJECT TO THE INFORMATION
SET FORTH ON THE REVERSE HEREOF:
<TABLE>
<S> <S> <S>
ISSUE PRICE:
ORIGINAL ISSUE DATE: INTEREST RATE: MATURITY DATE:
SPECIFIED CURRENCY: OPTION TO ELECT PAYMENT AUTHORIZED DENOMINATIONS
IN U.S. DOLLARS (only
applicable if Specified (if Specified Currency
Currency is other than is U.S. dollars):
U.S. dollars)
__ Yes __ No $1,000 and any integral
multiple of $1,000 in
excess thereof
INDEXED CURRENCY:
(if Specified Currency
is other than U.S.
dollars):
CURRENCY DETERMINATION AGENT: THIS SECURITY IS A:
__ Global Security
__ Certificated
Security (only
applicable if Specified
Currency is other than
U.S. dollars)
INTEREST PAYMENT DATES:
OPTIONAL REDEMPTION: INITIAL REDEMPTION DATE: REDEMPTION PRICE(S):
Initially ___% of
Principal
__ Yes __ No Amount and declining by
___% of the Principal
Amount on each
anniversary of the
Initial Redemption Date
until the Redemption
Price is 100% of the
Principal Amount
OPTION TO ELECT OPTIONAL REPAYMENT OPTIONAL REPAYMENT
REPAYMENT: DATE(S): PRICE(S):
__ Yes __ No
REPAYMENT PROVISIONS:
</TABLE>
If this Security was issued with "original issue discount"
for purposes of Section 1273 of the Internal Revenue Code of
1986, as amended, the following shall be completed:
<TABLE>
<S> <S> <S>
ORIGINAL ISSUE TOTAL AMOUNT OF OID: ISSUE PRICE (expressed
DISCOUNT SECURITY: as a percentage of
__ Yes __ No aggregate principal
amount):
YIELD TO MATURITY: INITIAL ACCRUAL PERIOD OID: METHOD USED TO DETERMINE
YIELD FOR INITIAL
ACCRUAL
PERIOD:
__ Approximate __ Exact
</TABLE>
<PAGE>
<PAGE>
CBI INDUSTRIES, INC., a Delaware corporation (herein called
the "Company", which term includes any successor Person under the
Indenture referred to on the reverse hereof), for value received,
hereby promises to pay to _____________________________ or
registered assigns, the principal sum of
______________________________ on the Maturity Date shown above,
and to pay interest thereon from and including the Original Issue
Date shown above or from and including the last date in respect
of which interest has been paid, as the case may be, to, but
excluding, the next succeeding Interest Payment Date. Interest
will be paid on the Interest Payment Dates shown above,
commencing with the first such Interest Payment Date next
succeeding the Original Issue Date shown above (except as
provided below), at the rate per annum specified above, until the
principal hereof is paid or made available for payment, and
interest shall accrue on any overdue principal and on any overdue
installment of interest (to the extent that the payment of such
interest shall be legally enforceable) at the rate per annum in
effect at the time such principal or installment of interest, as
the case may be, was due and payable. The interest so payable
and punctually paid or duly provided for on any Interest Payment
Date will, as provided in such Indenture, be paid to the Person
in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the regular record date
for such interest, which shall be the May 31 or November 30
(whether or not a Business Day, as defined) next preceding such
Interest Payment Date; provided, however, that interest payable
at the Maturity Date or upon earlier redemption or repayment will
be payable to the Person to whom principal shall be payable.
Payments of principal and interest on Notes for which payments of
principal and interest are made in equal installments over the
life of the security ("Amortizing Notes"), will be made either
quarterly on each March 15, June 15, September 15 and December 15
or semiannually on each June 15 and December 15 as set forth in
the applicable Pricing Supplement, and at maturity or upon
earlier redemption or repayment. Such payments will be payable
to the person in whose name such Amortizing Note is registered at
the close of business on the fifteenth day (whether or not a
Business Day) next preceding the respective Interest Payment
Date. If this Note was originally issued between a regular
record date and an Interest Payment Date, the first payment of
interest on this Note will be made on the Interest Payment Date
following the next succeeding regular record date to the
registered owner of this Note on such next succeeding regular
record date. Any interest not punctually paid or duly provided
for shall be payable as provided in the Indenture.
If this Note is denominated in a Specified Currency other
than U.S. dollars, then the Holder may, by delivery of a written
request to the Paying Agent (as defined) at its principal office
in The City of New York, New York on or prior to the applicable
record date or at least 15 days prior to the Maturity Date, as
the case may be, elect to receive all such payments in U.S.
dollars. Such election will remain in effect until revoked by
written notice received by the Paying Agent not later than the
applicable record date or at least 15 days prior to the Maturity
Date, as the case may be (but no such revocation may be made with
respect to payments made on this Note if an Event of Default has
occurred with respect hereto or upon the giving of a notice of
redemption). In addition, if bid quotations for U.S. dollars of
the type specified on the reverse side hereof are not available,
the Currency Determination Agent (which shall be the Company
unless otherwise as set forth above) will be unable to exchange
the Specified Currency for U.S. dollars and payments of principal
and interest will be made in the Specified Currency. If the
Specified Currency is unavailable due to the imposition of
exchange controls or to other circumstances beyond the Company's
control, payments will be made in U.S. dollars as described on
the reverse side hereof.
Payments in U.S. dollars of interest on this Note (other
than interest payable at the Maturity Date or upon earlier
redemption or repayment) will be made by mailing a check to the
Holder at the address of the Holder appearing in the security
register on the applicable record date. Principal and interest
payable in U.S. dollars at the Maturity Date or upon earlier
redemption or repayment in respect of this Note will be paid in
immediately available funds upon surrender of this Note
accompanied by wire transfer instructions at the principal office
of the Paying Agent in the City of New York. Payments in a
Specified Currency other than U.S. dollars of interest and
principal on this Note will be made by wire transfer to an
account with a bank located in the country issuing the Specified
Currency (or with respect to Notes denominated in European
Currency Units, or "ECUs," Brussels), as shall have been
designated by filing the appropriate information with the Trustee
at its Corporate Trust Office at least 15 days prior to the
Interest Payment Date or Maturity Date, as the case may be, by
the Holder, provided that, in the case of payment of principal of
(and premium, if any) and any interest due at the Maturity Date,
the Note is presented to the Paying Agent in time for the Paying
Agent to make such payments in such funds in accordance with its
normal procedures.
If the registered owner of this Note (as indicated above) is
the Depositary or a nominee of the Depositary, this Note is a
global Note and the following legend is applicable except as
specified on the reverse hereof: THIS GLOBAL NOTE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY OR BY A NOMINEE
OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR OF THE DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR.
Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof and such further provisions
shall for all purposes have the same effect as though fully set
forth at this place.
This Note shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have
been manually signed by or on behalf of the Trustee under the
Indenture referred to on the reverse hereof.
<PAGE>
IN WITNESS WHEREOF, CBI Industries, Inc. has caused this
instrument to be signed in its name by the facsimile signatures
of its duly authorized officers, and has caused a facsimile of
its corporate seal to be affixed hereunto or imprinted hereon.
Dated:
CBI INDUSTRIES, INC.
By: /S/ G.L. Schueppert
(Corporate Seal)
Attest:
By: /S/ R.K. Doty
Trustee's Certificate of Authentication
This is one of the Securities of the
series described herein and referred
to in the within-mentioned Indenture.
Chemical Bank, As Trustee
By:______________________________
Authorized Officer
<PAGE>
<PAGE>
[REVERSE SIDE OF SECURITIES]
CBI INDUSTRIES, INC.
MEDIUM-TERM NOTE, SERIES A
Section 1. General. This Note is one of a duly authorized
issue of debentures, notes, bonds or other evidences of
indebtedness of the Company (herein called the "Securities"), of
the series hereinafter specified, all issued or to be issued
under and pursuant to an indenture, dated as of March 1, 1994,
between the Company and Chemical Bank, as Trustee (the
"Indenture"), to which Indenture and all indentures supplemental
thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the Holders of the
Notes. The Securities may be issued in one or more series, which
different series may be issued in various aggregate principal
amounts, may mature at different times, may bear interest, if
any, at different rates, may be subject to different redemption
provisions, if any, may be subject to different sinking, purchase
or analogous funds, if any, and may otherwise vary as in the
Indenture provided. This Note is one of a series designated as
"Medium-Term Notes, Series A" of the Company, limited in
aggregate principal amount to U.S. $100,000,000, or its
equivalent at the time of issue in foreign currencies or currency
units, or in such lesser amount as may be reduced by the sale of
Securities of another series. References herein to "Notes" shall
mean the Notes of said Series A.
Section 2. Payments. (a) Interest on this Note will be
payable semi-annually each June 15 and December 15 or as
otherwise set forth herein (the "Interest Payment Dates") and at
the Maturity Date or upon earlier redemption or repayment.
Interest payments on each Interest Payment Date for this
Note will include accrued interest from and including the
Original Issue Date or from and including the last date in
respect of which interest has been paid, as the case may be, to,
but excluding, such Interest Payment Date, except that at the
Maturity Date the interest payments will include accrued interest
from and including the Original Issue Date, or from and including
the last date in respect of which interest has been paid, as the
case may be, to, but excluding, the Maturity Date.
(b) If this Note is denominated in other than U.S. dollars
and if the Holder has made the election described in paragraph
(c) below, payment in respect of this Note shall be made in U.S.
dollars based on the highest indicated bid quotation for the
purchase of U.S. dollars for the Specified Currency obtained by
the Currency Determination Agent at approximately 11:00 A.M., New
York City time, on the second Business Day next preceding the
applicable payment date (the "Conversion Date") from the bank
composite or multi-contributor pages of the Quoting Source for
three (or two if three are not available) major banks in The City
of New York. The first three (or two) such banks selected by the
Currency Determination Agent which are offering quotes on the
Quoting Source will be used. If fewer than two such bid
quotations are available at 11:00 A.M., New York City time, on
the second Business Day next preceding the applicable payment
date, such payment will be based on the noon buying rate in the
City of New York for cable transfers for such Specified Currency
as certified for customs purposes by the Federal Reserve Bank of
New York (the "Market Exchange Rate") as of the second Business
Day next preceding the applicable payment date. If the Market
Exchange Rate for such date is not then available, such payment
will be made in the Specified Currency, unless such Specified
Currency is unavailable due to the imposition of exchange
controls or to other circumstances beyond the Company's control,
in which case payment will be made as described in paragraph (d)
below. As used herein, the "Quoting Source" means Reuters
Monitor Foreign Exchange Service, or if the Currency
Determination Agent determines that such service is not
available, Telerate Monitor Foreign Exchange Service, or if the
Currency Determination Agent determines that neither service is
available, such comparable display or other comparable manner of
obtaining quotations as shall be agreed between the Company and
the Currency Determination Agent. All currency exchange costs
associated with any payment in U.S. dollars on this Note shall be
borne by the Holder hereof by deductions from such payments.
As used herein, "Business Day" means any Monday, Tuesday,
Wednesday, Thursday or Friday that in The City of New York is not
a day on which banking institutions are authorized or required by
law, regulation, or executive order to close.
(c) If this Note is denominated in other than U.S. dollars,
the Holder of this Note may elect to receive all such payments in
U.S. dollars as described in paragraph (b) above by delivery of a
written request to the Paying Agent at its principal office in
The City of New York, New York, which must be received by the
Paying Agent on or prior to the applicable record date or at
least 15 calendar days prior to the Maturity Date, as the case
may be. Such election shall remain in effect unless and until
revoked by written notice to the Paying Agent, but the Paying
Agent must receive written notice of any such revocation on or
prior to the applicable record date or at least 15 calendar days
prior to the Maturity Date, as the case may be (but no such
revocation may be made with respect to payments made on this Note
if an Event of Default has occurred with respect hereto or upon
the giving of a notice of redemption). In the absence of
manifest error, all determinations by the Currency Determination
Agent shall be final and binding on the Company and the Holder of
this Note.
(d) If payment of this Note is required to be made in a
Specified Currency (e.g. ECUs) other than U.S. dollars and on a
payment date with respect to this Note such currency is
unavailable, in the good faith judgment of the Company, due to
the imposition of exchange controls or other circumstances beyond
the Company's control, then all payments in respect of this Note
shall be made in U.S. dollars until such currency unit is again
available. Any payment made under such circumstances in U.S.
dollars where the required payment is in a Specified Currency
other than U.S. dollars will not constitute an Event of Default
under the Indenture. The amount of each payment of U.S. dollars
shall be computed on the basis of the equivalent of the currency
unit in U.S. dollars, which shall be determined by the Currency
Determination Agent on the following basis. The component
currencies of the currency unit for this purpose (the "Component
Currencies") shall be the currency amounts that were components
of the currency unit as of the Conversion Date. The equivalent
of the currency unit in U.S. dollars shall be calculated by
aggregating the U.S. dollar equivalents of the Component
Currencies. The U.S. dollar equivalent of each of the Component
Currencies shall be determined by the Currency Determination
Agent on the basis of the Market Exchange Rate for each such
Component Currency that is available as of the third Business Day
prior to the date on which the relevant payment is due and for
each such Component Currency that is unavailable, if any, as of
the Conversion Date for such Component Currency.
If the official unit of any Component Currency is altered by
way of combination or subdivision, the number of units of that
currency as a Component Currency shall be divided or multiplied
in the same proportion. If two or more Component Currencies are
consolidated into a single currency, the amounts of those
currencies as Component Currencies shall be replaced by an amount
in such single currency equal to the sum of the amounts of the
consolidated Component Currencies expressed in such single
currency. If any Component Currency is divided into two or more
currencies, the amount of the original Component Currency shall
be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original
Component Currency.
All determinations referred to above made by the Currency
Determination Agent shall be at its sole discretion (except to
the extent expressly provided herein or on the face hereof that
any determination is subject to approval by the Company) and, in
the absence of manifest error, shall be conclusive for all
purposes and binding on the Holder of this Note and the Company,
and the Currency Determination Agent shall have no liability
therefor.
(e) All percentages resulting from any calculations under
this Note will be rounded, if necessary, to the nearest one
hundred thousandth of a percentage point (with five one-
millionths of one percentage point being rounded upward) and all
currency or currency unit amounts used in or resulting from any
such calculation in respect of the Notes will be rounded to the
nearest one-hundredth of a unit (with five one-thousandths being
rounded upward).
(f) Until the Notes are paid or payment thereof is duly
provided for, the Company will, at all times, maintain a paying
agent (the "Paying Agent") in The City of New York capable of
performing the duties described herein to be performed by the
Paying Agent. The Company has initially appointed the Trustee as
the Paying Agent. The Company will notify the Holders of such
Notes, in accordance with the Indenture, of any change in the
Paying Agent or its address.
Section 3. Redemption. If so specified on the face hereof,
the Company may at its option redeem this Note in whole or from
time to time in part on or after the date designated as the
Initial Redemption Date on the face hereof at prices declining
from a premium specified on the face hereof, if any, to par
together with accrued interest to the date of redemption. The
Company may exercise such option by causing a notice of such
redemption to be mailed to each Holder by first class mail,
postage prepaid, at least 30 but not more than 60 days prior to
the date of redemption. In the event of redemption of this Note
in part only, a new Note or Notes for the unredeemed portion
hereof shall be issued in the name of the Holder hereof upon the
cancellation hereof. If less than all of the Notes with like
tenor and terms to this Note are to be redeemed, the Notes to be
redeemed shall be selected by the Trustee by such method as the
Trustee shall deem fair and appropriate.
Section 4. Repayment. If so specified on the face hereof,
this Note will be repayable prior to the Maturity Date at the
option of the Holder on the Optional Repayment Dates shown on the
face hereof at a price equal to 100% of the principal amount
hereof or, if this Note is a Discounted Security (as specified on
the face hereof), at the applicable Optional Repayment Price
shown on the face hereof, together with accrued interest to the
date of repayment.
Section 5. Sinking Fund. The Notes will not be subject to
any sinking fund.
Section 6. Original Issue Discount Notes. Notwithstanding
anything herein to the contrary, if this Note is an Original
Issue Discount Note, the amount payable in the event of
redemption or repayment, or declaration of acceleration following
an Event of Default, prior to the Maturity Date hereof in lieu of
the principal amount due at the Maturity Date hereof shall be the
Amortized Face Amount of this Note as of the redemption date, the
date of repayment or the date of declaration of acceleration, as
the case may be. The "Amortized Face Amount" of this Note shall
be the amount equal to (a) the Issue Price (as set forth on the
face hereof) plus (b) that portion of the difference between the
Issue Price and the principal amount hereof that has accrued at
the Yield to Maturity (as set forth on the face hereof) (computed
in accordance with generally accepted United States bond yield
computation principles) at the date as of which the Amortized
Face Amount is calculated but in no event shall the Amortized
Face Amount of this Note exceed its principal amount.
Section 7. Events of Default. In case an Event of Default,
as defined in the Indenture, with respect to the Notes shall have
occurred and be continuing, the Trustee or Holders of at least
25% in principal amount of the Notes outstanding may declare the
principal amount of all the Notes, and upon such declaration such
principal amount of all the Notes shall become, due and payable,
in the manner, with the effect and subject to the conditions
provided in the Indenture.
Section 8. Modifications and Waivers. The Indenture
contains provisions permitting the Company and the Trustee, with
the written consent of the Holders of not less than a majority in
aggregate principal amount of the Debt Securities of each series
affected (all such Holders voting as a single class) (which
Holders, in the case of a Global Security, shall be the
Depositary appointed by the Company as the Holder of the Global
Security which represents the Debt Securities), evidenced as in
the Indenture provided, to execute supplemental indentures adding
any provisions to or changing in any manner or eliminating any of
the provisions of the Indenture or any supplemental indenture or
modifying in any manner the rights of the Holders of Debt
Securities of such series; provided, however, that no such
supplemental indenture shall (i) change the fixed maturity of any
Debt Securities or reduce the principal amount thereof, reduce
the redemption premium thereon or reduce the rate or extend the
time of payment of interest thereon, without the consent of the
Holder of each Security so affected, or (ii) reduce the aforesaid
percentage of Debt Securities of any series, the consent of the
Holders of which is required for any such supplemental indenture
or for any waiver of default under the Indenture with respect to
the Debt Securities of such series, without the consent of the
Holders of all the Debt Securities of each series so affected.
It is also provided in the Indenture that the Holders of a
majority in aggregate principal amount of the Debt Securities of
any series may on behalf of all the Holders of the Debt
Securities of such series waive compliance with certain covenants
with respect to the Debt Securities of such series or waive any
past default with respect to the Debt Securities of such series
except a default (i) in the payment of the principal of, premium,
if any, or interest on any Debt Securities or in the payment of
any sinking fund installment or analogous obligation, if any is
required, or (ii) a default in respect of a covenant or provision
of the Indenture which cannot be modified or amended without the
consent of the Holder of each Debt Security of such series
affected.
Any such consent or waiver by the Holder of this Note
(unless revoked as provided in the Indenture) shall be conclusive
and binding upon such Holder and upon all future Holders and
owners of this Note and of any Note which may be issued upon the
registration for transfer hereof or in exchange or substitution
herefor, irrespective of whether or not any notation of such
consent or waiver is made upon this Note or such other Notes.
No reference herein to the Indenture and no reference to any
provision of this Note or of the Indenture shall alter or impair
the obligation of the Company, which is absolute and
unconditional, to pay the principal of (and premium, if any) and
interest, if any, on this Note at the place, at the respective
times, at the rate and in the currency herein prescribed.
Section 9. Authorized Denominations. Notes are issuable in
registered form without coupons in the minimum denomination of
$1,000, or the equivalent thereof in the Specified Currency, and
in any larger amount that is an integral multiple of $1,000.
Notes may be exchanged by the Holder hereof without charge except
for any tax or other governmental charge imposed in connection
therewith, for a like aggregate principal amount of Notes of
other authorized denominations in the manner and subject to the
limitations provided in the Indenture at the office or agency to
be maintained by the Company in The City of New York, New York,
or at such other location or locations as may be provided for in
the Indenture.
Section 10. Registration of Transfer. Upon due presentment
for registration of transfer of this Note at the office or agency
of the Company in The City of New York, New York, one or more new
Notes of authorized denominations, for an equal aggregate
principal amount, will be issued to the transferee in exchange
therefor subject to the limitations provided in the Indenture,
without charge except for any tax or other governmental charge
imposed in connection therewith.
If this Note is a global Note (as specified on the face
hereof), this Note is exchangeable only if (w) the Depositary
notifies the Company and the Trustee in writing that it is
unwilling or unable to continue as Depositary for this global
Note or if at any time the Depositary ceases to be a clearing
agency registered under the Securities Exchange Act of 1934, as
amended, and a successor Depositary is not appointed by the
Company within 90 days, (x) the Company in its sole discretion
determines that this Note shall be exchangeable for certificated
Notes in registered form and delivers to the Trustee a written
order as described in the Indenture that this Note shall be so
exchangeable, or (y) there shall have occurred and be continuing
an Event of Default or an event which, with the lapse of time or
the giving of notice, or both, would constitute an Event of
Default with respect to the global Notes represented hereby or
(z) there shall exist such other circumstances, if any, as
specified for this purpose as contemplated by Section 301 of the
Indenture, provided that this permanent global Note shall be
surrendered by the Depositary, or such other depositary as shall
have been specified as provided in the Indenture, to the Trustee,
as the agent for such purpose, to be exchanged, in whole or in
part, for definitive Securities without charge, and the Trustee
shall authenticate and deliver, in exchange for each portion of
this permanent global Note, an equal aggregate principal amount
of definitive Securities, executed by the Company, of the same
series of authorized denominations and of like tenor as the
portion of this global Note to be exchanged, which shall be in
the form of registered Securities as provided in the Company's
written order as described in the Indenture.
Every Security authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, this global
Note other than pursuant to clauses (w), (x), (y) or (z) above,
shall be authenticated and delivered in the form of, and shall
be, a Global Security. Except as provided above, owners of
beneficial interests in this permanent global Note will not be
entitled to receive physical delivery of Notes in certificated
registered form and will not be considered the Holders thereof
for any purpose under the Indenture.
Section 11. Owners. Prior to due presentment for
registration of transfer of this Note, the Company, the Trustee,
any Paying Agent and the Security Registrar may deem and treat
the registered Holder hereof as the absolute owner of this Note
(whether or not this Note shall be overdue and notwithstanding
any notation of ownership or other writing hereon), for the
purpose of receiving payment of, or on account of, the principal
hereof, and, subject to the provisions on the face hereof,
interest hereon, and for all other purposes, and neither the
Company nor the Trustee nor any Paying Agent nor any Security
Registrar shall be affected by any notice to the contrary.
Section 12. No Recourse Against Certain Persons. No
recourse shall be had for the payment of the principal (or
premium, if any) or the interest on this Note, or for any claim
based hereon, or otherwise in respect hereof, or based on or in
respect of the Indenture or any indenture supplemental thereto,
against any incorporator, stockholder, officer, director or
employee, as such, past, present or future, of the Company or any
successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
Section 13. Definitions. All terms used in this Note which
are defined in the Indenture shall have the meanings assigned to
them therein.
Section 14. Governing Law. This Note shall be governed and
construed in accordance with the law of the State of New York.
<PAGE>
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned owner of this Note hereby irrevocably elects
to have the Company repay the principal amount of this Note or
portion hereof below designated at the Optional Repayment Price
indicated on the face hereof.
Dated:_____________________ ______________________________
Signature
Sign exactly as name appears on the
front of this Security [SIGNATURE
GUARANTEE - required only if
Securities are to be issued and
delivered to other than the
registered holder]
Principal amount to be Fill in for registration of
repaid, if amount to be Securities if to be issued
repaid is less principal otherwise than to the then
amount of this Security registered holder:
(principal amount remaining
must be an authorized
Name:________________________________
denomination)
Address:_____________________________
_____________________________
$_________________________ (Please print name and
address including zip
code)
SOCIAL SECURITY OR OTHER TAXPAYER
ID NUMBER
___________________________________
<PAGE>
<PAGE>
____________________
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they
were written out in full according to applicable laws or
regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and
not as tenants in common
UNIF GIFT MIN ACT - ...........Custodian...........
(Cust) (Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
Additional abbreviations may also be used though not in the above
list.
____________________
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
________________________________
___________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP
CODE
OF ASSIGNEE
_______________________________________________
the within Note and all rights thereunder, hereby irrevocably
constituting and appointing __________________ attorney to
transfer said Note on the books of the Company, with full power
of substitution in the premises.
Dated: _________________________________
Signature
<PAGE>
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH
THE NAME AS WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN
EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE
WHATEVER.
<TABLE>
Exhibit 11
CBI INDUSTRIES, INC. AND SUBSIDIARIES
Computation of Earnings per Common Share
<CAPTION>
Three Months
Thousands of dollars, Ended March 31,
except per share amounts 1994 1993
<S> <C> <C>
Primary Earnings Per Common Share
Net income to common shareholders $ 8,172 $ 4,149
Weighted average number of common shares outstanding 37,680 36,873
Primary net income per common share $ 0.22 $ 0.11
======= =======
Fully Diluted Earnings Per Common Share
Net income to common shareholders $ 8,172 $ 4,149
Add back expenses included in net income that pertain
to ESOP debt service:
Series C preferred dividends 2,093 2,133
Common dividends on unallocated reverted shares 16 24
Company contributions (after utilization of common dividends
of $202, $199 charged to retained earnings) 2,004 1,979
ESOP debt amortization (212) (527)
Tax effect included in net income related to debt service (1,582) (1,424)
------- -------
Net income adjusted to exclude ESOP debt service 10,491 6,334
Adjustments to reflect the servicing of ESOP debt (required
for this calculation), based on the assumption all the Series C
preferred shares were converted to common shares:
Common dividends on unallocated reverted shares (34) (50)
Company contributions (after utilization of common dividends
of $838, $624 charged to retained earnings) (3,443) (3,661)
ESOP debt amortization 212 527
Tax effect included in net income related to debt service 1,435 1,317
------- -------
Fully Diluted net income to common shareholders $ 8,661 $ 4,467
======= =======
Weighted average number of common shares outstanding 37,680 36,873
Add common stock equivalents of stock option plan 190 143
Add common stock equivalents of leveraged Series C preferred shares 4,527 4,587
Add common stock equivalents of reverted allocated Series C
preferred shares 860 741
------- -------
Fully diluted weighted average number of common shares outstanding 43,257 42,344
======= =======
Fully diluted net income per common share $ 0.20 $ 0.11
======= =======
</TABLE>
