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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 5, 1998
Registration Statement No. 333-[_________]
Post-Effective Amendment No. 1 to Registration Statement No. 33-62545
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------------------
FORM S-3
Registration Statement
Under the
Securities Act Of 1933
-------------------------------------
EMERSON ELECTRIC CO.
(Exact name of registrant as specified in its charter)
Missouri 43-0259330
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
8000 West Florissant Avenue, Station 2431,
P.O. Box 4100
St. Louis, Missouri 63136
(Address of principal executive offices)
Registrant's telephone number including area code: (314) 533-2000
Harley M. Smith, Esq.
Assistant General Counsel and Assistant Secretary
Emerson Electric Co.
8000 West Florissant Avenue, Station 2431, P.O. Box 4100
St. Louis, Missouri 63136
(314) 553-2431
(Name, address and telephone number of Agent for service)
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Approximate date of commencement of proposed sale to public: From time to
time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
CALCULATION OF REGISTRATION FEE
================================================================================
Title of each class Proposed Maximum
of securities Aggregate Amount of
to be registered Offering Price(1) registration fee(3)
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Debt Securities $675,000,000 (2) $187,650
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(1) Estimated solely for purposes of calculating the registration fee.
(2) Or, if any Debt Securities are issued (i) with a principal amount
denominated in a foreign currency, such principal amount as shall result
in an aggregate initial offering price the equivalent of $675,000,000 at
the time of initial offering, or (ii) at an original issue discount, such
greater principal amount as shall result in an aggregate initial offering
price of $675,000,000.
(3) $325,000,000 principal amount of Debt Securities was previously
registered (Registration No. 33-62545, described below) and is carried
forward hereby. The amount of filing fee associated with the Debt
Securities that was previously paid with such earlier registration
statement is $112,069.
Pursuant to Rule 429 under the Securities Act of 1933, as amended, the
Prospectus contained herein will also be used in connection with Registration
Statement No. 33-62545 previously filed by the Registrant on Form S-3 and
declared effective on September 20, 1995. This Registration Statement, which is
a new registration statement, also constitutes Post-Effective Amendment No. 1 to
Registration Statement No. 33-62545 and such Amendment shall become effective
concurrently with the effectiveness of this Registration Statement and in
accordance with Section 8(c) of the Securities Act of 1933.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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================================================================================
[GRAPHIC OMITTED]
Emerson Electric Co.
Debt Securities
- --------------------------------------------------------------------------------
This Prospectus describes Debt Securities which we may issue and sell at
various times:
-- The Debt Securities may be debentures, notes or other unsecured
evidences of indebtedness of Emerson.
-- We may issue them in one or several series.
-- The total principal amount of the Debt Securities to be issued under
this Prospectus will be not more than $1,000,000,000 (or the
equivalent amount in other currencies).
-- The terms of each series of Debt Securities (interest rates, maturity,
redemption provisions and other terms) will be determined at the time
of sale, and will be specified in a Prospectus Supplement which will
be delivered together with this Prospectus at the time of the sale.
We may sell Debt Securities to or through underwriters, dealers or agents.
We may also sell Debt Securities directly to investors. More information about
the way we will distribute the Debt Securities is under the heading "Plan of
Distribution." Information about the underwriters or agents who will participate
in any particular sale of Debt Securities will be in the Prospectus Supplement
relating to that series of Debt Securities.
-------------------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities, or determined that
this Prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this Prospectus is November [__], 1998.
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We have not authorized anyone to give any information or to make any
representations concerning the offering of the Debt Securities except that which
is in this Prospectus or in the Prospectus Supplement which is delivered with
this Prospectus, or which is referred to under "Where You Can Find More
Information." If anyone gives or makes any other information or representations,
you should not rely on it. This Prospectus is not an offer to sell or a
solicitation of an offer to buy any securities other than the Debt Securities
which are referred to in the Prospectus Supplement. This Prospectus is not an
offer to sell or a solicitation of an offer to buy such Debt Securities in any
circumstances in which such offer or solicitation is unlawful. You should not
interpret the delivery of this Prospectus, or any sale of Debt Securities, as an
indication that there has been no change in our affairs since the date of this
Prospectus. You should also be aware that information in this Prospectus may
change after this date.
TABLE OF CONTENTS
Table Of Contents..........................2
Where You Can Find More Information........3
Information About Emerson..................3
Use Of Proceeds............................3
Description Of The Debt Securities.........4
Book-Entry Debt Securities.................8
Plan Of Distribution.......................9
Experts....................................10
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any of these documents at the
SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms. Our SEC filings are also available to the public
at the SEC's web site at http://www.sec.gov. The SEC allows us to incorporate by
reference the information we file with them, which means that we can disclose
important information to you by referring you to those documents.
The information incorporated by reference is considered to be part of this
Prospectus, and later information that we file with the SEC will automatically
update and supersede this information. We incorporate by reference the documents
listed below and any future filings made with the SEC under Sections 13(a),
13(c), 14, or 15(d) of the Securities Exchange Act of 1934 until we sell all of
the Debt Securities. This Prospectus is part of a registration statement we
filed with the SEC.
-- Our Annual Report on Form 10-K for the year ended September 30, 1997.
-- Our Quarterly Reports on Form 10-Q for the quarters ended December 31,
1997, March 31, 1998 and June 30, 1998.
-- Our Current Reports on Form 8-K dated October 7, 1997, December 29,
1997 and October 6, 1998.
You may receive a copy of any of these filings, at no cost, by writing or
telephoning H. M. Smith, our Assistant Secretary and Assistant General Counsel,
at Emerson Electric Co., Station 2431, 8000 West Florissant Avenue, P.O. Box
4100, St. Louis, Missouri 63136, telephone 314-553-2431.
We have filed with the SEC a Registration Statement to register the Debt
Securities under the Securities Act of 1933. This Prospectus omits certain
information contained in the Registration Statement, as permitted by SEC rules.
You may obtain copies of the Registration Statement, including exhibits, as
noted in the first paragraph above.
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INFORMATION ABOUT EMERSON
Emerson Electric Co. was incorporated in Missouri in 1890. We were
originally engaged in the manufacture and sale of electric motors and fans. We
subsequently expanded our product lines through internal growth and
acquisitions. We are now engaged principally in the design, manufacture and sale
of a broad range of electrical, electromechanical and electronic products and
systems throughout the world. Our principal executive offices are at 8000 West
Florissant Avenue, P. O. Box 4100, St. Louis, Missouri 63136. Our telephone
number is (314) 553-2000.
USE OF PROCEEDS
Unless otherwise specified in the Prospectus Supplement which accompanies
this Prospectus, we intend to add the net proceeds from the sale of the Debt
Securities to our general funds. We expect to use the proceeds for general
corporate purposes, including working capital, capital expenditures, and the
repayment of short-term borrowings. Before we use the proceeds for these
purposes, we may invest them in short-term investments.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratios of earnings to fixed charges of
the Company for the periods indicated. For purposes of computation of the ratio
of earnings to fixed charges, earnings consist of income before income taxes and
cumulative effects of changes in accounting principles plus the amount of fixed
charges. Fixed charges consist of interest expense and that portion of rental
expense deemed to represent interest.
Nine Months
Year Ended September 30, Ended June 30,
---------------------------------------- ---------------
1993 1994 1995 1996 1997 1998
------- -------- -------- -------- -------- --------
Ratio of Earnings
to Fixed Charges.... 7.5 x 11.0 x 9.7 x 9.8 x 11.3 x 10.4 x
==== ===== ==== ==== ===== =====
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DESCRIPTION OF THE DEBT SECURITIES
This section describes some of the general terms of the Debt Securities.
The Prospectus Supplement describes the particular terms of the Debt Securities
we are offering. The Prospectus Supplement also indicates the extent, if any, to
which such general provisions may not apply to the Debt Securities being
offered.
We will issue the Debt Securities under an Indenture between us and The
Bank of New York, which is serving as Trustee. The Indenture is an exhibit to
the Registration Statement. We are summarizing certain important provisions of
the Debt Securities and the Indenture. This is not a complete description of the
important terms. You should refer to the specific terms of the Indenture for a
complete statement of the terms of the Indenture and the Debt Securities. When
we use capitalized terms which we don't define here, those terms have the
meanings given in the Indenture. When we use references to Sections, we mean
Sections in the Indenture.
General
The Debt Securities will be unsecured obligations of Emerson.
The Indenture does not limit the amount of Debt Securities that we may
issue under the Indenture, nor does it limit other debt that we may issue. We
may issue the Debt Securities at various times in different series, each of
which may have different terms.
The Prospectus Supplement relating to the particular series of Debt
Securities we are offering includes the following information concerning those
Debt Securities:
-- The title of the Debt Securities.
-- Any limit on the amount of the Debt Securities that we may offer.
-- The price at which are offering the Debt Securities. We will usually
express the price as a percentage of the principal amount.
-- The maturity date of the Debt Securities.
-- The interest rate per annum on the Debt Securities. We may specify a
fixed rate or a variable rate, or we may offer Debt Securities that do
not bear interest but are sold at a substantial discount from the
amount payable at maturity.
-- The date from which interest on the Debt Securities will accrue.
-- The dates on which we will pay interest and the regular record dates
for determining who is entitled to receive the interest.
-- If applicable, the dates on which or after which, and the prices at
which, we are required to redeem the Debt Securities or have the
option to redeem the Debt Securities.
-- If applicable, any limitations on our right to defease our obligations
under the Debt Securities by depositing cash or securities.
-- The amount that we would be required to pay if the maturity of the
Debt Securities is accelerated, if that amount is other than the
principal amount.
-- Any additional restrictive covenants or other material terms relating
to the Debt Securities.
-- Any additional Events of Default that will apply to the Debt
Securities.
-- If we will make payments on the Debt Securities in any currency other
than United States dollars, the currency or composite currency in
which we will make those payments. If the currency will be determined
under an index, the details concerning such index.
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Payments on Debt Securities
We will make payments on the Debt Securities at the office or agency we
will maintain for that purpose (which will be the Corporate Trust Office of the
Trustee in New York, New York unless we indicate otherwise in the Prospectus
Supplement) or at such other places and at the respective times and in the
manner as we designate in the Prospectus Supplement. (Sections 3.1 and 3.2) As
explained under "Book-Entry Securities" below, The Depository Trust Company or
its nominee will be the initial registered Holder unless the Prospectus
Supplement provides otherwise.
Form, Denominations and Transfers
Unless otherwise indicated in the Prospectus Supplement:
-- The Debt Securities will be in fully registered form, without coupons,
in denominations of $1,000 or any multiple thereof.
-- We will not charge any fee to register any transfer or exchange of the
Debt Securities, except for taxes or other governmental charges (if
any). (Section 2.8)
Original Issue Discount Securities
If Debt Securities are Original Issue Discount Securities, we will offer
and sell them at a substantial discount below their stated principal amount. We
will describe Federal income tax consequences and other special considerations
applicable to any such Original Issue Discount Securities in the Prospectus
Supplement. "Original Issue Discount Security" means any security which provides
that less than the full principal amount will be due if the maturity is
accelerated or if the security is redeemed before its maturity. (Section 5.1)
Indexed Debt Securities
We may issue Debt Securities under which the principal amount payable at
maturity or the amount of interest payable will be determined by reference to
currency exchange rates, commodity prices, equity indices or other factors. In
that case, the amount we will pay to the Holders will depend on the value of the
applicable currency, commodity, equity index or other factor at the time our
payment obligation is calculated. We will include information in the Prospectus
Supplement for those Debt Securities about how we will calculate the principal
or interest payable, and will specify the currencies, commodities, equity
indices or other factors to which the principal amount payable at maturity or
interest is linked. We will also provide information about certain additional
tax considerations which would apply to the Holders of those Debt Securities.
Certain Restrictions
Unless we otherwise specify in the Prospectus Supplement, there will not be
any covenants in the Indenture or the Debt Securities that would protect you
against a highly leveraged or other transaction involving Emerson that may
adversely affect you as a holder of Debt Securities. If there are provisions
that offer such protection, they will be described in the Prospectus Supplement.
Limitations on Liens. Under the Indenture, we and our Restricted
Subsidiaries (defined below) may not issue any debt for money borrowed, or
assume or guarantee any such debt, which is secured by a mortgage on a Principal
Property (defined below) or shares of stock or indebtedness of any Restricted
Subsidiary, unless such mortgage similarly secures your Debt Securities. A
Principal Property is any manufacturing plant or manufacturing facility that we
or any Restricted Subsidiary owns, is located within the continental United
States and, in the opinion of our Board of Directors, is of material importance
to our total business that we and our Restricted Subsidiaries conduct, taken as
a whole. The above restriction will not apply to debt that is secured by:
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-- mortgages on property, shares of stock or indebtedness of any
corporation that exists when it becomes a Restricted Subsidiary;
-- mortgages on property that exist when we acquire the property and
mortgages that secure payment of the purchase price of the mortgaged
property;
-- mortgages that secure debt which a Restricted Subsidiary owes to us or
to another Restricted Subsidiary;
-- mortgages that existed at the date of the Indenture;
-- mortgages on property of a company that exist when we acquire the
company;
-- mortgages in favor of a government to secure debt that we incur to
finance the purchase price of the property that we mortgage; or
-- extensions, renewals or replacement of any of the mortgages described
above.
A Restricted Subsidiary is a direct or indirect subsidiary of Emerson if
substantially all of its property is located in the continental United States
and if it owns any Principal Property (except a subsidiary principally engaged
in leasing or in financing installment receivables or overseas operations).
The Indenture also excepts from this limitation on liens secured debt of up
to 10% of our consolidated net tangible assets. (Section 3.6)
Limitation on Sale and Leaseback Transactions. We may not enter into sale
and leaseback transactions involving any Principal Property, except for leases
of up to three years, unless we could issue debt secured by the property
involved (under the limitations on liens described above) in an amount equal to
the Attributable Debt which would be calculated under the Indenture based on the
rental payments to be received, or we pay other debt within 90 days in an amount
not less than such Attributable Debt amount. (Section 3.7)
Restrictions on Consolidation, Merger or Sale. We may not consolidate or
merge or sell or convey all or substantially all of our assets unless (a) the
surviving corporation (if it is not Emerson) is a domestic corporation and
assumes our obligations on your Debt Securities and under the Indenture and (b)
immediately after such transactions, there is no default. (Section 9.1)
Defeasance
The Indenture includes provisions allowing defeasance that we may choose to
apply to Debt Securities of any series. If we do so, we would deposit with the
Trustee or another trustee money or U. S. Government Obligations sufficient to
make all payments on those Debt Securities. If we make such a deposit with
respect to your Debt Securities, we may elect either:
-- to be discharged from all our obligations on your Debt Securities,
except for our obligations to register transfers and exchanges, to
replace temporary or mutilated, destroyed, lost or stolen Debt
Securities, to maintain an office or agency in respect of the Debt
Securities and to hold moneys for payment in trust; or
-- to be released from our restrictions described above relating to liens
and sale/leaseback transactions.
To establish such a trust, we must deliver to the Trustee an opinion of our
counsel that the Holders of the Debt Securities will not recognize income, gain
or loss for Federal income tax purposes as a result of such defeasance and will
be subject to Federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such defeasance had not occurred.
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There may be additional provisions relating to defeasance which we will describe
in the Prospectus Supplement. (Sections 13.1, 13.2, 13.3 and 13.4)
Events of Default, Notice and Waiver
If certain Events of Default by us specified in the Indenture happen and
are continuing, either the Trustee or the Holders of 25% in principal amount of
the outstanding Debt Securities of a series may declare the principal, and
accrued interest, if any, of all securities of such series to be due and
payable. If other specified Events of Default happen and are continuing, either
the Trustee or the Holders of 25% in principal amount of the outstanding Debt
Securities of all series may declare the principal, and accrued interest, if
any, of all the outstanding Debt Securities to be due and payable. (Section 5.1)
An Event of Default in respect of any series of Debt Securities means:
-- default for 30 days in payment of any interest installment;
-- default in payment of principal, premium, sinking fund installment or
analogous obligation when due;
-- unless stayed by litigation, default, for 90 days after notice to
Emerson by the Trustee or by the Holders of 25% in principal amount of
the outstanding Debt Securities of such series, in performance of any
other covenant in the Indenture governing such series; and
-- certain events of our bankruptcy, insolvency and reorganization.
(Section 5.1)
Within 90 days after a default in respect of any series of Debt Securities,
the Trustee must give to the Holders of such series notice of all uncured and
unwaived defaults by us known to it. However, except in the case of default in
payment, the Trustee may withhold such notice if it in good faith determines
that such withholding is in the interest of such Holders. The term "default"
means, for this purpose, the happening of any Event of Default, disregarding any
grace period or notice requirement. (Section 5.11)
Before the Trustee is required to exercise rights under the Indenture at
the request of Holders, it is entitled to be indemnified by such Holders,
subject to its duty, during an Event of Default, to act with the required
standard of care. (Sections 6.1 through 6.13)
If any Event of Default has occurred, the Holders of a majority in
principal amount of the outstanding Debt Securities of any series may direct the
time, method and place of conducting proceedings for remedies available to the
Trustee, or exercising any trust or power conferred on the Trustee, in respect
of such series. (Section 5.9)
Emerson must file an annual certificate with the Trustee that it is in
compliance with conditions and covenants under the Indenture. (Section 3.5)
In certain cases, the Holders of a majority in principal amount of the
outstanding Debt Securities of a series, on behalf of the Holders of all Debt
Securities of such series, or the Holders of a majority of all outstanding Debt
Securities voting as a single class, on behalf of the Holders of all outstanding
Debt Securities, may waive any past default or Event of Default, or compliance
with certain provisions of the Indenture, but may not waive among other things
an uncured default in payment. (Sections 5.1 and 5.10)
Modification or Amendment of the Indenture
If we receive the consent of the holders of a majority in principal amount
of the outstanding Debt Securities affected, we may enter into supplemental
indentures with the Trustee that would
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-- add, change or eliminate provisions in the Indenture; or
-- change the rights of the Holders of Debt Securities.
However, unless we receive the consent of all of the affected Holders, we
may not enter into supplemental indentures that would with respect to the Debt
Securities of such Holders:
-- change the maturity;
-- reduce the principal amount or any premium;
-- reduce the interest rate or extend the time of payment of interest;
-- reduce any amount payable on redemption or reduce the amount of the
principal of an Original Issue Discount Security that would be payable
on acceleration;
-- impair or affect the right of any Holder to institute suit for
payment;
-- change any right of the Holder to require repayment; or
-- reduce the requirement for two-thirds approval of supplemental
indentures. (Section 8.2)
Regarding the Trustee
The Trustee is The Bank of New York. The Trustee is a lender to us under
our revolving credit agreement. From time to time, we may enter into other
banking relationships with the Trustee.
BOOK-ENTRY DEBT SECURITIES
The Prospectus Supplement will indicate whether we are issuing the related
Debt Securities as book-entry securities. Book-entry securities of a series will
be issued in the form of one or more global notes that will be deposited with
The Depository Trust Company, New York, New York, and will evidence all of the
Debt Securities of that series. This means that we will not issue certificates
to each Holder. We will issue one or more global securities to DTC, which will
keep a computerized record of its participants (for example, your broker) whose
clients have purchased the Debt Securities. The participant will then keep a
record of its clients who own the Debt Securities. Unless it is exchanged in
whole or in part for a security evidenced by individual certificates, a global
security may not be transferred, except that DTC, its nominees and their
successors may transfer a global security as a whole to one another. Beneficial
interests in global securities will be shown on, and transfers of beneficial
interests in global notes will be made only through, records maintained by DTC
and its participants. Each person owning a beneficial interest in a global
security must rely on the procedures of DTC and, if such person is not a
participant, on the procedures of the participant through which such person owns
its interest to exercise any rights of a Holder of Debt Securities under the
Indenture.
The laws of some jurisdictions require that certain purchasers of
securities such as Debt Securities take physical delivery of such securities in
definitive form. Such limits and such laws may impair your ability to acquire or
transfer beneficial interests in the global security.
We will make payments on each series of book-entry Debt Securities to DTC
or its nominee, as the sole registered owner and holder of the global security.
Neither Emerson, the Trustee nor any of their agents will be responsible or
liable for any aspect of DTC's records relating to or payments made on account
of beneficial ownership interests in a global security or for maintaining,
supervising or reviewing any of DTC's records relating to such beneficial
ownership interests.
DTC has advised us that, when it receives any payment on a global security,
it will immediately, on its book-entry registration and transfer system, credit
the accounts of participants with payments in amounts proportionate to their
beneficial interests in the global security as shown on DTC's records. Payments
by participants to you, as an owner of a beneficial interest in the global
security, will be governed by standing instructions and customary practices (as
is now the case with securities held for customer accounts registered in "street
name") and will be the sole responsibility of such participants.
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A global security representing a series will be exchanged for certificated
Debt Securities of that series only if (x) DTC notifies us that it is unwilling
or unable to continue as Depositary or if DTC ceases to be a clearing agency
registered under the 1934 Act and we don't appoint a successor within 90 days,
(y) we decide that the global security shall be exchangeable or (z) there is an
Event of Default under the Indenture or an event which with the giving of notice
or lapse of time or both would become an Event of Default with respect to the
Debt Securities represented by such global security. If that occurs, we will
will issue Debt Securities of that series in certificated form in exchange for
such global security. An owner of a beneficial interest in the global security
then will be entitled to physical delivery of a certificate for Debt Securities
of such series equal in principal amount to such beneficial interest and to have
such Debt Securities registered in its name. We would issue the certificates for
such Debt Securities in denominations of $1,000 or any larger amount that is an
integral multiple thereof, and we would issue them in registered form only,
without coupons.
DTC has advised us that it is a limited-purpose trust company organized
under the New York Banking Law, a "banking organization" within the meaning of
the New York Banking Law, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code, and a
"clearing agency" registered under the 1934 Act. DTC was created to hold the
securities of its participants and to facilitate the clearance and settlement of
securities transactions among its participants through electronic book-entry
changes in accounts of the participants, thereby eliminating the need for
physical movement of securities certificates. DTC's participants include
securities brokers and dealers, banks, trust companies, clearing corporations,
and certain other organizations, some of whom (and/or their representatives) own
DTC. Access to DTC's book-entry system is also available to others, such as
banks, brokers, dealers and trust companies that clear through or maintain a
custodial relationship with a participant, either directly or indirectly. The
rules applicable to DTC and its participants are on file with the SEC. No fees
or costs of DTC will be charged to you.
PLAN OF DISTRIBUTION
We may sell Debt Securities to or through one or more underwriters or
dealers, and also may sell Debt Securities directly to other purchasers or
through agents. Such firms may also act as our agents in the sale of Debt
Securities. Only underwriters named in the Prospectus Supplement will be
considered as underwriters of the Debt Securities offered by such Supplement.
We may distribute Debt Securities at different times in one or more
transactions. We may sell Debt Securities at fixed prices, which may change, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
In connection with the sale of Debt Securities, underwriters may receive
compensation from us or from purchasers of Debt Securities in the form of
discounts, concessions or commissions. Underwriters, dealers and agents that
participate in the distribution of Debt Securities may be deemed to be
underwriters. Discounts or commissions they receive and any profit on their
resale of Debt Securities may be considered underwriting discounts and
commissions under the Securities Act of 1933. We will identify any such
underwriter or agent, and we will describe any such compensation, in the
Prospectus Supplement.
We may agree to indemnify underwriters, dealers and agents who participate
in the distribution of Debt Securities against certain liabilities, including
liabilities under the 1933 Act. We may also agree to contribute to payments
which the underwriters, dealers or agents may be required to make in respect of
such liabilities.
We may authorize dealers or other persons who act as our agents to solicit
offers by certain institutions to purchase Debt Securities from us under
contracts which provide for payment and delivery on a future date. We may enter
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into such contracts with commercial and savings banks, insurance companies,
pension funds, investment companies, educational and charitable institutions and
others. If we enter into such agreements concerning any series of Debt
Securities, we will indicate that in the Prospectus Supplement.
In connection with an offering of Debt Securities, underwriters may engage
in transactions that stabilize, maintain or otherwise affect the price of the
Debt Securities. Specifically, underwriters may over-allot in connection with
the offering, creating a syndicate short position in the Debt Securities for
their own account. In addition, underwriters may bid for, and purchase, Debt
Securities in the open market to cover short positions or to stabilize the price
of the Debt Securities. Finally, underwriters may reclaim selling concessions
allowed for distributing the Debt Securities in the offering if the underwriters
repurchase previously distributed Debt Securities in transactions to cover short
positions, in stabilization transactions or otherwise. Any of these activities
may stabilize or maintain the market price of the Debt Securities above
independent market levels. Underwriters are not required to engage in any of
these activities and may end any of these activities at any time.
EXPERTS
The consolidated financial statements of Emerson Electric Co. and
subsidiaries as of September 30, 1997 and 1996, and for each of the years in the
three-year period ended September 30, 1997 incorporated by reference herein,
have been incorporated herein in reliance upon the report of KPMG Peat Marwick
LLP, independent certified public accountants, incorporated by reference herein
and upon the authority of said firm as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth estimated expenses in connection with the
issuance and distribution of the securities being registered:
Registration Fee ........................... $ 187,650
Printing and Engraving...................... 30,000*
Trustee's Charges .......................... 25,000*
Accounting Fees ............................ 50,000*
Rating Agency Fees ......................... 225,000*
Legal Fees ................................. 50,000*
Miscellaneous .............................. 10,000*
-------------
Total ............................ $ 577,650*
================
* Estimated
Item 15. Indemnification of Directors and Officers.
Emerson is a Missouri corporation. Section 351.355(1) of the Revised
Statutes of Missouri provides that a corporation may indemnify a director,
officer, employee or agent of the corporation in any action, suit or proceeding
other than an action by or in the right of the corporation against expenses
(including attorneys' fees), judgments, fines and settlement amounts actually
and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation and, with respect
to any criminal action, had no reasonable cause to believe his conduct was
unlawful. Section 351.355(2) provides that the corporation may indemnify any
such person in any action or suit by or in the right of the corporation against
expenses (including attorneys' fees) and settlement amounts actually and
reasonably incurred by him in connection with the defense or settlement of the
action or suit if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation, except that he
may not be indemnified in respect of any matter in which he has been adjudged
liable for negligence or misconduct in the performance of his duty to the
corporation, unless authorized by the court. Section 351.355(3) provides that a
corporation shall indemnify any such person against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection with the
action, suit or proceeding if he has been successful in defense of such action,
suit or proceeding and if such action, suit or proceeding is one for which the
corporation may indemnify him under Section 351.355(1) or (2). Section
351.355(7) provides that a corporation shall have the power to give any further
indemnity to any such person, in addition to the indemnity otherwise authorized
under Section 351.355, provided such further indemnity is either (i) authorized,
directed or provided for in the articles of incorporation of the corporation or
any duly adopted amendment thereof or (ii) is authorized, directed or provided
for in any By-Law or agreement of the corporation which has been adopted by a
vote of the shareholders of the corporation, provided that no such indemnity
shall indemnify any person from or on account of such person's conduct which was
finally adjudged to have been knowingly fraudulent, deliberately dishonest or
willful misconduct.
II-1
<PAGE>
At the Annual Meeting of Shareholders held on February 10, 1987, Emerson
shareholders adopted indemnification agreements with the directors of Emerson
and amendments to the Bylaws of Emerson which incorporate indemnity provisions
permitted by Section 351.355(7) described above. The agreements and amended
Bylaws provide that Emerson will indemnify its directors and officers against
all expenses (including attorneys' fees), judgments, fines and settlement
amounts, paid or incurred in any action or proceeding, including any action by
or on behalf of Emerson, on account of their service as a director or officer of
Emerson, any subsidiary of Emerson or any other company or enterprise when they
are serving in such capacities at the request of Emerson, excepting only cases
where (i) the conduct of such person is adjudged to be knowingly fraudulent,
deliberately dishonest or willful misconduct, (ii) a final court adjudication
shall determine that such indemnification is not lawful, (iii) judgment is
rendered against such person for an accounting of profits made from a purchase
or sale of securities of Emerson in violation of Section 16(b) of the Securities
Exchange Act of 1934 or of any similar statutory law, or (iv) any remuneration
paid to such person is adjudicated to have been paid in violation of law. Such
person shall be indemnified only to the extent that the aggregate of losses to
be indemnified exceeds the amount of such losses for which the director or
officer is insured pursuant to any directors' or officers' liability insurance
policy maintained by Emerson.
The directors and officers of Emerson are insured under a policy of
directors' and officers' liability insurance maintained by Emerson.
Item 16. Exhibits.
1.1- Form of Underwriting Agreement Standard Provisions.
1.2- Form of Pricing Agreement (included in Exhibit 1.1).
4.1- Form of Indenture between the Registrant and The Bank of New York,
as Trustee.
4.2- Form of Debt Security.
5 - Opinion of H. M. Smith, Esq.
12 - Statement re computation of ratios of earnings to fixed charges.
23.1 Consent of H. M. Smith, Esq. (included in Exhibit 5).
23.2 Consent of KPMG Peat Marwick LLP
24- Powers of Attorney executed by certain of the officers and directors
of the Registrant (included on the signature page).
25- Form T-1, Statement of Eligibility under the Trust Indenture Act of
1939, of The Bank of New York, as Trustee.
II-2
<PAGE>
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made of
the securities registered hereby, a post-effective amendment to this
registration statement (i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933; (ii) to reflect in the prospectus
any facts or events arising after the effective date of the registration
statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the
information set forth in the registration statement; notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Securities and Exchange Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement; and (iii) to include any material information with respect to
the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement; provided, however, that the undertakings set forth in
subparagraphs (i) and (ii) above do not apply if the information required
to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Securities and
Exchange Commission by the Registrant pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in
this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination
of the offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that
is incorporated by reference in the registration statement shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(5) To file an application for the purpose of determining the eligibility
of the trustee (under any Indenture entered into with a trustee to be
selected) to act under subsection (a) of Section 310 of the Trust Indenture
Act (the "TIA") in accordance with the rules and regulations prescribed by
the Commission under Section 305(b)(2) of the TIA.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling persons of
the Registrant pursuant to the provisions described under Item 15 above, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this registration
statement and this amendment to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of St. Louis, State of Missouri, on the
3rd day of November, 1998.
EMERSON ELECTRIC CO.
By: /s/ W. J. Galvin
---------------------
W.J. Galvin
Senior Vice-President-Finance and
Chief Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
W.J. Galvin, W.W. Withers and H.M. Smith, and each of them, his or her true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
and supplements to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, and hereby grants to such attorneys-in-fact
and agents, full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and purposes
as he or she might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement, which also constitutes Post-Effective Amendment No. 1 to
Registration Statement No. 33-62545, has been signed below on November 3, 1998
by the following persons in the capacities indicated:
Signature Title
---------- -----
/s/ C.F. Knight Chairman of the Board,
- --------------------------------------- Chief Executive Officer and Director
(C.F. Knight)
/s/ W.J. Galvin Senior Vice President - Finance and
- --------------------------------------- Chief Financial Officer
(W.J. Galvin) (Principal Accounting Officer)
/s/ J.G. Berges Director
- ---------------------------------------
(J.G. Berges)
/s/ L.L. Browning, Jr. Director
- ---------------------------------------
(L.L. Browning, Jr.)
II-4
<PAGE>
/s/ A.A. Busch III Director
- ---------------------------------------
(A.A. Busch III)
/s/ D.C. Farrell Director
- ---------------------------------------
(D.C. Farrell)
/s/s J.A. Frates Director
- ---------------------------------------
(J.A. Frates)
/s/ R.B. Horton Director
- ---------------------------------------
(R.B. Horton)
/s/ G.A. Lodge Director
- ---------------------------------------
(G.A. Lodge)
/s/ V.R. Loucks, Jr. Director
- --------------------------------------
(V.R. Loucks, Jr.)
/s/ R.B. Loynd Director
- ---------------------------------------
(R.B. Loynd)
/s/ R.L. Ridgway Director
- ---------------------------------------
(R.L. Ridgway)
/s/ R.W. Staley Director
- ---------------------------------------
(R.W. Staley)
/s/ A.E. Suter Director
- ---------------------------------------
(A.E. Suter)
/s/ G.W. Tamke Director
- --------------------------------------
(G. W. Tamke)
/s/ W.M. Van Cleve Director
- ---------------------------------------
(W.M. Van Cleve)
/s/ E.E. Whitacre, Jr. Director
- ---------------------------------------
(E.E. Whitacre, Jr.)
II-5
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description of Exhibit
------ ----------------------
1.1- Form of Underwriting Agreement Standard Provisions.
1.2- Form of Pricing Agreement (included in Exhibit 1.1).
4.1- Form of Indenture between the Registrant and The Bank of New York,
as Trustee.
4.2- Form of Debt Security.
5 - Opinion of H. M. Smith, Esq.
12 - Statement re computation of ratios of earnings to fixed charges.
23.1 Consent of H. M. Smith, Esq. (included in Exhibit 5).
23.2 Consent of KPMG Peat Marwick LLP
24- Powers of Attorney executed by certain of the officers and directors
of the Registrant (included on the signature page).
25- Form T-1, Statement of Eligibility under the Trust Indenture Act of
1939, of The Bank of New York, as Trustee.
II-6
Exhibit 1.1
EMERSON ELECTRIC CO.
Debt Securities
Underwriting Agreement Standard Provisions
[date]
From time to time Emerson Electric Co. (the "Company") proposes to
enter into one or more Pricing Agreements (each a "Pricing Agreement") in the
form of Annex I hereto, with such additions and deletions as the parties thereto
may determine, and, subject to the terms and conditions stated herein and
therein, to issue and sell to the firms named in Schedule I to the applicable
Pricing Agreement or named in the applicable Pricing Agreement (such firm or
firms constituting the "Underwriters" with respect to such Pricing Agreement and
the securities specified therein) certain of its debt securities (the
"Securities") specified in Schedule II to such Pricing Agreement (with respect
to such Pricing Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the Indenture (the "Indenture"), dated as of [_________],
between the Company and The Bank of New York, as Trustee. The Pricing Agreement,
including the provisions incorporated therein by reference, is herein referred
to as the "Underwriting Agreement." Unless otherwise defined herein, terms
defined in the Pricing Agreement are used herein as therein defined.
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to Underwriters who act without any firm being designated
as their representative. This Underwriting Agreement Standard Provisions shall
not be construed as an obligation of the Company to sell any of the Securities
or as an obligation of any of the Underwriters to purchase the Securities. The
obligation of the Company to issue and sell any of the Securities and the
obligation of any of the Underwriters to purchase any of the Securities shall be
evidenced by the Pricing Agreement with respect to the Designated Securities
specified therein. Each Pricing Agreement shall specify the aggregate principal
amount of such Designated Securities, the initial public offering price of such
Designated Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters and the principal amount of
such Designated Securities to be purchased by each Underwriter and shall set
forth the date, time and manner of delivery of such Designated Securities and
payment therefor. The Pricing Agreement shall also specify (to the extent not
set forth in the Indenture and the Registration Statement and Prospectus
referred to below) the terms of such Designated Securities. A Pricing Agreement
shall be in the form of an executed writing (which may be in counterparts), and
may be evidenced by an exchange of telegraphic or facsimile communications or
other electronic communications satisfactory to the parties which produce a
<PAGE>
record of communications transmitted. The obligations of the Underwriters under
the Underwriting Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement (No.33-62545) and a second registration
statement (No. 333-_____, which included this Underwriting Agreement
Standard Provisions as an exhibit thereto), including a prospectus, in
respect of the Securities have been filed with the Securities and Exchange
Commission (the "Commission") in the forms heretofore delivered or to be
delivered to the Representatives and, excluding exhibits to such
registration statements, but including all documents incorporated by
reference in the prospectus contained in such second registration
statement, to each of the other Underwriters and such registration
statements in such forms have been declared effective by the Commission and
no stop order suspending the effectiveness of such registration statements
has been issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in such
second registration statement being hereinafter called a "Preliminary
Prospectus"; such first registration statement, including all exhibits
thereto but excluding the Statement of Eligibility and Qualification on
Form T-1, as amended at the time it became effective, and such second
registration statement, including all exhibits thereto and incorporated by
reference therein but excluding Form T-1, as amended at the time it became
effective, being hereinafter called the "First Registration Statement" and
the "Second Registration Statement", respectively, and collectively the
"Registration Statements" and singly a "Registration Statement"; the
prospectus relating to the Securities, in the form in which it has most
recently been filed, or transmitted for filing, with the Commission on or
prior to the date of this Underwriting Agreement Standard Provisions, being
hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to the
applicable form under the Securities Act of 1933, as amended (the "Act"),
as of the date of such Preliminary Prospectus or Prospectus, as the case
may be; any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any
documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of 1934,
as amended (the "Exchange Act") and incorporated by reference therein; and
any reference to the Prospectus as amended or supplemented shall be deemed
to refer to the Prospectus as amended or supplemented in relation to the
applicable Designated Securities in the form in which it is first filed, or
transmitted for filing, with the Commission pursuant to Rule 424 under the
Act, including any documents incorporated by reference therein as of the
date of such filing or mailing);
(b) The documents incorporated by reference in the Registration
Statements and the Prospectus, when they became effective or were filed
with the Commission, as the case may be, conformed in all material respects
to the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading; and any further documents so filed
2
<PAGE>
and incorporated by reference in the Registration Statements and the
Prospectus, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities;
(c) The Registration Statements and the Prospectus conform, and any
amendments or supplements thereto will conform, in all material respects to
the requirements of the Act and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act") and the rules and regulations of the Commission
thereunder and, as of the respective effective dates of the Registration
Statements and any amendments thereto, the Registration Statements did not,
and as of the applicable filing dates of the Prospectus and any supplement
thereto, the Prospectus does not and will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter of
Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities or to
that part of the Registration Statement that constitutes Form T-1 under the
Trust Indenture Act;
(d) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree otherwise than as set forth
or contemplated in the Prospectus; and, since the respective dates as of
which information is given in the Prospectus, there has not been any
material decrease in the capital stock or material increase in the
long-term debt of the Company or any of its subsidiaries or any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, otherwise than as set forth or contemplated in the
Prospectus or as disclosed in writing to the Representatives prior to the
execution and delivery of the Pricing Agreement;
(e) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
3
<PAGE>
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable;
(g) The Securities have been duly authorized, and, when Designated
Securities are issued and delivered pursuant to the Pricing Agreement with
respect to such Designated Securities, such Designated Securities will have
been duly executed, issued and delivered by the Company and, when
authenticated and delivered by the Trustee in accordance with the terms of
the Indenture, will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture, which will be
substantially in the form filed as an exhibit to the Second Registration
Statement; the Indenture has been duly authorized and, at the Time of
Delivery (as defined in Section 4 hereof), the Indenture will be duly
qualified under the Trust Indenture Act and will constitute a valid and
legally binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Securities and the
Indenture conform to the descriptions thereof in the Prospectus;
(h) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture and the
Underwriting Agreement, including any Pricing Agreement, and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach of any of the terms or provisions of,
or constitute a default under, any material indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company
is a party or by which the Company is bound or to which any of the property
or assets of the Company is subject, nor will such action result in any
violation of the provisions of the Restated Articles of Incorporation, as
amended, or the By-Laws of the Company or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Company or any of its properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale of
the Securities or the consummation by the Company of the other transactions
contemplated by the Underwriting Agreement, including any Pricing
Agreement, or the Indenture except such as have been, or will have been
prior to the Time of Delivery, obtained under the Act and the Trust
Indenture Act and such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Securities by
the Underwriters; and
(i) Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject which, if determined adversely to
the Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries; and, to the best of the Company's knowledge, no such
proceedings have been threatened by governmental authorities or others.
4
<PAGE>
3. Upon the execution of the Pricing Agreement applicable to any Designated
Securities and authorization by the Representatives of the release of such
Designated Securities, the Underwriters propose to offer such Designated
Securities for sale upon the terms and conditions set forth in the Prospectus as
amended or supplemented.
4. Designated Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto, in definitive form to the extent
practicable, and in such authorized denominations and registered in such names
as the Representatives may request upon at least forty-eight hours' prior notice
to the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by certified or
official bank check or checks, or by wire transfer, payable to the order of the
Company in the funds specified in such Pricing Agreement, all at the place and
time and date specified in such Pricing Agreement or at such other place and
time and date as the Representatives and the Company may agree upon in writing,
such time and date being herein called the "Time of Delivery" for such
Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To make no further amendment or any supplement of either
Registration Statement or Prospectus as amended or supplemented after the
date of the Pricing Agreement relating to such Securities and prior to the
Time of Delivery for such Securities which shall be reasonably disapproved
by the Representatives for such Securities promptly after reasonable notice
thereof; to advise the Representatives promptly of any such amendment or
supplement after such Time of Delivery and furnish the Representatives with
copies thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act for so long as the delivery of a prospectus is required in connection
with the offering or sale of such Securities, and during such same period
to advise the Representatives, promptly after it receives notice thereof,
of the time when any amendment to either Registration Statement has been
filed or become effective or any supplement to the Prospectus or any
amended Prospectus has been filed, or transmitted for filing, of the
issuance by the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of such Securities for offering or sale in
any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of either Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any such stop
order or of any such order preventing or suspending the use of any
prospectus relating to the Securities or suspending any such qualification,
to use promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of such Securities,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
5
<PAGE>
(c) To furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities as the Representatives may from
time to time reasonably request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Securities and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during
such same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust Indenture Act,
to notify the Representatives and upon their request to file such document
and to prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from time to
time reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Pricing Agreement, an earnings statement of the
Company and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations of the Commission
thereunder (including at the option of the Company Rule 158); and
(e) During the period beginning from the date of the Pricing Agreement
for such Designated Securities and continuing to and including the earlier
of (i) the termination of trading restrictions for such Designated
Securities, as notified to the Company by the Representatives and (ii) the
Time of Delivery for such Designated Securities, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the Company
which mature more than one year after such Time of Delivery and which are
substantially similar to such Designated Securities, without the prior
written consent of the Representatives.
6. The Company covenants and agrees with the Underwriters that the Company
will pay or cause to be paid the following: (i) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statements and Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or reproducing any Agreement
among Underwriters, this Underwriting Agreement Standard Provisions, any Pricing
Agreement, any Indenture, any Blue Sky and legal investment memoranda and any
other documents in connection with the offering, purchase, sale and delivery of
the Securities; (iii) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the reasonable fees and disbursements of counsel
for the Underwriters in connection with such qualification and in connection
with the Blue Sky and legal investment surveys; (iv) any fees charged by
securities rating services for rating the Securities; (v) any filing fees
incident to any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Securities; (vi) the cost of
preparing the Securities; (vii) the fees and expenses of any Trustee and any
agent of any Trustee and the reasonable fees and disbursements of counsel for
any Trustee in connection with any Indenture and the Securities; and (viii) all
6
<PAGE>
other reasonable costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this Section,
Section 8 and Section 11 hereof, the Underwriters will pay all of their own
costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company herein are,
at and as of the Time of Delivery for such Designated Securities, true and
correct in all material respects, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) No stop order suspending the effectiveness of either Registration
Statement shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated the Time of Delivery for
such Designated Securities, with respect to the incorporation of the
Company, the validity of the Indenture, the Designated Securities, the
Registration Statements, the Prospectus as amended or supplemented and
other related matters as the Representatives may reasonably request, and
such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters; provided that
in rendering such opinion, counsel for the Underwriters may rely as to all
matters governed by Missouri law on the opinion of counsel for the Company,
referred to in (c) below;
(c) Counsel for the Company, which may be the General Counsel or any
Assistant General Counsel of the Company, shall have furnished to the
Representatives a written opinion, dated the Time of Delivery for such
Designated Securities, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus as amended or supplemented;
(ii) Other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries; and, to the best of
such counsel's knowledge, no such proceedings are threatened or
7
<PAGE>
contemplated by governmental authorities or threatened by others;
(iii) The Underwriting Agreement, including the Pricing Agreement
with respect to the Designated Securities, has been duly authorized,
executed and delivered by the Company and each is a valid and binding
agreement in accordance with its terms, except as rights to indemnity
hereunder and thereunder may be limited by applicable law;
(iv) Assuming the Designated Securities have been authenticated
by the Trustee in accordance with the terms of the Indenture, the
Designated Securities have been duly authorized, executed, issued and
delivered and constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture; and the
Designated Securities and the Indenture conform to the descriptions
thereof in the Prospectus as amended or supplemented;
(v) The Indenture has been duly authorized, executed and
delivered by the parties thereto and, with respect to the Company,
constitutes a valid and legally binding instrument, enforceable
against the Company in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights
and to general equity principles; and the Indenture has been duly
qualified under the Trust Indenture Act;
(vi) The issue and sale of the Designated Securities by the
Company and the compliance by the Company with all of the provisions
of the Designated Securities, the Indenture, and the Underwriting
Agreement with respect to the Designated Securities and the
consummation by the Company of the transactions herein and therein
contemplated will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, any
material indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company is
a party or by which the Company is bound or to which any of the
property or assets of the Company is subject, nor will such action
result in any violation of the provisions of the Restated Articles of
Incorporation, as amended, or the By-Laws of the Company or any
material statute or any order, rule or regulation known to such
counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its properties;
(vii) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the issue and sale of the Designated Securities or the
consummation by the Company of the other transactions contemplated by
the Underwriting Agreement or the Indenture, except such as have been
obtained under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with
the purchase and distribution of the Designated Securities by the
Underwriters;
8
<PAGE>
(viii) The documents incorporated by reference in the
Registration Statements and the Prospectus as amended or supplemented
(other than the financial statements and related schedules therein, as
to which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may be,
complied as to form in all material respects with the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; and such counsel believes
that each of such documents (other than the financial statements and
related schedules therein, as to which such counsel need express no
belief), when it became effective or was so filed, as the case may be,
did not contain, in the case of a registration statement which became
effective under the Act, an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and, in the
case of other documents which were filed under the Act or the Exchange
Act with the Commission, an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading; and
(ix) The Registration Statements and the Prospectus as amended or
supplemented and any further amendments and supplements thereto made
by the Company prior to the Time of Delivery for the Designated
Securities (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) comply as
to form in all material respects with the requirements of the Act and
the Trust Indenture Act and the rules and regulations thereunder; such
counsel believes that, as of the respective effective dates of the
Registration Statements, the Registration Statements and the
prospectuses included therein (and, as of its date, any further
amendment or supplement thereto made by the Company prior to the Time
of Delivery) (other than the financial statements and related
schedules therein, as to which such counsel need express no belief)
did not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading and that, as of the Time of
Delivery, the Prospectus (and any such further amendment or supplement
thereto) (other than the financial statements and related schedules
therein, as to which such counsel need express no belief) does not
contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; and
such counsel does not know of any contracts or other documents of a
character required to be filed as an exhibit to either Registration
Statement or required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be described in
either Registration Statement or the Prospectus as amended or
supplemented which are not filed or incorporated by reference or
described as required;
(d) The Representatives shall have received at the Time of Delivery
for such Designated Securities a letter dated such date, in form and
substance satisfactory to the Representatives, from the Company's,
independent public accountants, containing statements and information of
the type ordinarily included in accountants' "comfort letters" to
9
<PAGE>
underwriters with respect to the financial statements and certain financial
information relating to the Company contained in the Registration Statement
and the Prospectus;
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus as amended or
supplemented, and (ii) since the respective dates as of which information
is given in the Prospectus as amended or supplemented there shall not have
been 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,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries, otherwise than as set forth or contemplated
in the Prospectus as amended or supplemented, the effect of which, in any
such case described in Clause (i) or (ii), is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in the
Prospectus as amended or supplemented;
(f) Subsequent to the date of the Pricing Agreement relating to the
Designated Securities, no downgrading shall have occurred 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;
(g) Subsequent to the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on the New York Stock Exchange; (ii) a general moratorium on commercial
banking activities in New York declared by either Federal or New York State
authorities; or (iii) the engagement by the United States in hostilities
which have resulted in the declaration, on or after the date of such
Pricing Agreement, of a national emergency or war if the effect of any such
event specified in this Clause (iii) in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the public offering
or the delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented; and
(h) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Securities a
certificate or certificates of officers of the Company satisfactory to the
Representatives as to the accuracy of the representations and warranties of
the Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set forth
in subsections (a) and (e) of this Section and as to such other matters as
the Representatives may reasonably request.
10
<PAGE>
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, either Registration Statement, the Prospectus as amended
or supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are 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 will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim; provided, however, that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, any preliminary
prospectus supplement, either Registration Statement, the Prospectus as amended
or supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter of Designated Securities
through the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, any preliminary prospectus
supplement, either Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are 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, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, any preliminary prospectus
supplement, either Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through
the Representatives expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the Company
in connection with investigating or defending any such action or claim.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof, but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under such
subsection or to the extent that it is not prejudiced by such omission. In
case any such action shall be brought against any indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
11
<PAGE>
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party),
and, after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof
other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters of the Designated Securities on the other
from the offering of the Designated Securities to which such loss, claim,
damage or liability (or action in respect thereof) relates. If, however,
the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party
shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and the
Underwriters of the Designated Securities on the other in connection with
the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and such Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from such offering
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by such Underwriters. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or such Underwriters on
the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed
to include 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 this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Designated
Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such 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. The obligations of the Underwriters of
Designated Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to
such Securities and not joint.
12
<PAGE>
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section 8 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of
the Company and to each person, if any, who controls the Company within the
meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Designated Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Designated Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representatives to
purchase such Designated Securities on such terms. In the event that, within the
respective prescribed period, the Representatives notify the Company that they
have so arranged for the purchase of such Designated Securities, or the Company
notifies the Representatives that it has so arranged for the purchase of such
Designated Securities, the Representatives or the Company shall have the right
to postpone the Time of Delivery for such Designated Securities for a period of
not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statements or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company agrees
to file promptly any amendments or supplements to the Registration Statements or
the Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in the Underwriting Agreement shall
include any person substituted under this Section with like effect as if such
person had originally been a party to the Pricing Agreement with respect to such
Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters by
the Representatives and the Company as provided in subsection (a) above,
the aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount
of the Designated Securities, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the principal amount of
Designated Securities which such Underwriter agreed to purchase under the
Pricing Agreement relating to such Designated Securities and, in addition,
to require each non-defaulting Underwriter to purchase its pro rata share
(based on the principal amount of Designated Securities which such
Underwriter agreed to purchase under such Pricing Agreement) of the
Designated Securities of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters by
the Representatives and the Company as provided in subsection (a) above,
the aggregate principal amount of Designated Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of the
Designated Securities, as referred to in subsection (b) above, or if the
Company shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Designated Securities of a
13
<PAGE>
defaulting Underwriter or Underwriters, then the Pricing Agreement relating
to such Designated Securities shall thereupon terminate, without liability
on the part of any non-defaulting Underwriter or the Company, except for
the expenses to be borne by the Company and the Underwriters as provided in
Section 6 hereof and the indemnity and contribution agreements in Section 8
hereof, but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
the Underwriting Agreement or made by or on behalf of them, respectively,
pursuant to the Underwriting Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, or any officer or director or controlling person of
the Company, and shall survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Section 6 and Section 8 hereof; but, if for any other
reason Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all reasonable out-of-pocket expenses approved in writing by
the Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing or by telegram if promptly confirmed in writing, and if to the
Underwriters shall be sufficient in all respects if delivered or sent by
facsimile or registered mail to the address of the Representatives as set forth
in the Pricing Agreement; and if to the Company shall be sufficient in all
respects if delivered or sent by facsimile or registered mail to the address of
the Company set forth in the Second Registration Statement: Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by registered mail to such
Underwriter at its address as specified by such Underwriter to the
Representatives, which address will be supplied to the Company by the
Representatives upon request.
13. The Underwriting Agreement, including this Underwriting Agreement
Standard Provisions and each Pricing Agreement, shall be binding upon, and inure
solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Section 8 and Section 10 hereof, the officers and directors of the
Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
14
<PAGE>
other person shall acquire or have any right under or by virtue of this
Underwriting Agreement Standard Provisions or any such Pricing Agreement. No
purchaser of any of the Securities from any Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement.
15. This Underwriting Agreement Standard Provisions and each Pricing
Agreement shall be construed in accordance with the laws of the State of New
York.
16. Each Pricing Agreement may be executed by any one or more of the
parties hereto and thereto in any number of counterparts, each of which shall be
deemed to be an original, but all such respective counterparts shall, together
with this Underwriting Agreement Standard Provisions, constitute one and the
same instrument.
15
<PAGE>
ANNEX I
Pricing Agreement
[Date]
- -----------------
- -----------------
- -----------------
- -----------------
Dear Sirs:
Emerson Electric Co., a Missouri corporation (the "Company"), proposes,
subject to the terms and conditions stated herein and in the Underwriting
Agreement Standard Provisions, dated November [ ], 1998, a copy of which is
attached hereto, to issue and sell to the firms named in Schedule I hereto, the
aggregate principal amount of the Securities set forth in Schedule II hereto
(the "Designated Securities"). Each of the provisions of the Underwriting
Agreement Standard Provisions is incorporated herein by reference in its
entirety and shall be deemed to be a part of this Pricing Agreement to the same
extent as if such provisions had been set forth in full herein.
Each reference to the "First Registration Statement" and the "Second
Registration Statement" in the Underwriting Agreement Standard Provisions so
incorporated by reference shall be deemed to refer to the Company's Registration
Statement on Form S-3, File No. 33-62545, and the Company's Registration
Statement on Form S-3, File No. 333-_____,respectively.
Each reference to the Underwriters herein and in the provisions of the
Underwriting Agreement Standard Provisions shall be deemed to refer to the firms
named in Schedule I hereto. Each reference to the Representatives herein and in
the provisions of the Underwriting Agreement Standard Provisions shall be deemed
to refer to --------------------------- ---------------------------, whose
authority hereunder and thereunder may be exercised by them jointly or by
- ------------------------------.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement Standard Provisions incorporated herein by reference, the
Company agrees to issue and sell to the Underwriters, and the Underwriters agree
16
<PAGE>
to purchase from the Company, at the time and place and at the purchase price
set forth in Schedule II hereto, the aggregate principal amount of the
Designated Securities set forth in Schedule II hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us a counterpart hereof, and upon acceptance hereof by you, this
letter and such acceptance hereof, including the provisions of the Underwriting
Agreement Standard Provisions incorporated herein by reference, shall constitute
a binding agreement among the Underwriters and the Company.
Very truly yours,
Emerson Electric Co.
By
----------------------------
Acceptance as of the date hereof:
--------------------------------
--------------------------------
on behalf of themselves and the
other Underwriters
By ------------------------------
17
<PAGE>
Schedule I to Pricing Agreement
Principal Amount of
Designated Securities
Underwriters to be Purchased
---------------------
$
-----------------
TOTAL $
18
<PAGE>
Schedule II to Pricing Agreement
Title of Designated Securities:
- ------------------------------
Aggregate Principal Amount
- --------------------------
Price to Public:
- ---------------
Purchase Price by the Underwriters:
- ----------------------------------
Maturity:
- --------
Interest Rate:
- -------------
Interest Payment Dates:
- ----------------------
Redemption Provisions:
- ---------------------
Sinking Fund Provisions:
- -----------------------
Time of Delivery:
- ----------------
19
<PAGE>
Closing Location:
- ----------------
Specified funds for payment of purchase price:
- ---------------------------------------------
Form and Denomination; Settlement:
- ---------------------------------
Delayed Delivery:
- ----------------
Indenture:
- ---------
Names and Addresses for Representatives:
- ---------------------------------------
Designated Representatives:
-------------------------------
Address for Notices, etc.:
-------------------------------
Attention: -------------------
20
Exhibit 4.1
================================================================================
Emerson Electric Co.
and
The Bank of New York, Trustee
-------------------------------------
Indenture
Dated as of [_________], 1998
-------------------------------------
================================================================================
<PAGE>
CROSS REFERENCE SHEET*
Between
Provisions of Trust Indenture Act of 1939, as amended, and the Indenture
dated as of [_________], 1998 between Emerson Electric Co., Issuer, and The Bank
of New York, Trustee:
Section of the Act Section of Indenture
310(a)(1) and (2) ........................... 6.9
310(a)(3) and (4) ........................... Inapplicable
310(b) ...................................... 6.8 and 6.10(a), (b) and (d)
310(c) ...................................... Inapplicable
311(a) ...................................... 6.13
311(b) ...................................... 6.13
311(c) ...................................... Inapplicable
312(a) ...................................... 4.1 and 4.2(a)
312(b) ...................................... 4.2(a) and (b)
312(c) ...................................... 4.2(c)
313(a) ...................................... 4.4(a)
313(b)(1) ................................... Inapplicable
313(b)(2) ................................... 4.4
313(c) ...................................... 4.4
313(d) ...................................... 4.4
314(a) ...................................... 4.3
314(b) ...................................... Inapplicable
314(c)(1) and (2) ........................... 13.5
314(c)(3) ................................... Inapplicable
314(d) ...................................... Inapplicable
314(e) ...................................... 13.5
314(f) ...................................... Inapplicable
315(a), (c) and (d) ......................... 6.1
315(b) ...................................... 5.11
315(e) ...................................... 5.12
316(a)(1) ................................... 5.9
316(a)(2) ................................... Not required
316(a) (last sentence) ...................... 7.4
316(b) ...................................... 5.7
316(c) ...................................... 7.1
317(a) ...................................... 5.2
317(b) ...................................... 3.4(a) and (b)
318(a) ...................................... 13.7
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*This Cross Reference Sheet in not part of the Indenture.
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TABLE OF CONTENTS
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Page
PARTIES........................................................................1
RECITALS.......................................................................1
Authorization of Indenture.....................................................1
Compliance with Legal Requirements.............................................1
Purpose of and Consideration for Indenture.....................................1
ARTICLE ONE DEFINITIONS.......................................................1
SECTION 1.1 Certain Terms Defined.....................................1
Board of Directors...........................................1
Business Day.................................................1
Commission...................................................2
Consolidated Net Tangible Assets.............................2
Corporate Trust Office.......................................2
Depositary...................................................2
Event of Default.............................................2
Exchange Rate Agent..........................................2
Global Security..............................................2
Holder.......................................................2
Indenture....................................................2
Interest.....................................................2
Issuer.......................................................3
Market Exchange Rate.........................................3
Officers' Certificate........................................3
Opinion of Counsel...........................................3
Original issue date..........................................3
Original Issue Discount Security.............................3
Outstanding..................................................3
Person.......................................................4
principal....................................................4
Principal Property...........................................4
record date..................................................4
Responsible Officer..........................................4
Restricted Subsidiary........................................4
Security.....................................................5
Subsidiary...................................................5
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Trustee......................................................5
Trust Indenture Act..........................................5
U.S. Government Obligations..................................5
vice president...............................................5
Yield to Maturity............................................5
ARTICLE TWO SECURITIES.........................................................6
SECTION 2.1 Forms Generally...........................................6
SECTION 2.2 Form of Trustee's Certificate of Authentication...........6
SECTION 2.3 Amount Unlimited; Issuable in Series......................6
SECTION 2.4 Authentication and Delivery of Securities.................8
SECTION 2.5 Execution of Securities...................................9
SECTION 2.6 Certificate of Authentication............................10
SECTION 2.7 Denomination and Date of Securities; Payments
of Interest..............................................10
SECTION 2.8 Registration, Transfer and Exchange......................11
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities...............................................13
SECTION 2.10 Cancellation of Securities; Destruction Thereof.........13
SECTION 2.11 Temporary Securities....................................14
ARTICLE THREE COVENANTS OF THE ISSUER.........................................14
SECTION 3.1 Payment of Principal and Interest........................14
SECTION 3.2 Offices for Payments, etc................................15
SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee.......15
SECTION 3.4 Paying Agents............................................15
SECTION 3.5 Written Statement to Trustee.............................16
SECTION 3.6 Limitation on Liens......................................16
SECTION 3.7 Limitation on Sale and Lease-Back........................17
ARTICLE FOUR SECURITYHOLDERS' LISTS AND REPORTS BY THE ISSUER
AND THE TRUSTEE......................................................18
SECTION 4.1 Issuer to Furnish Trustee Information as to Names
and Addresses of Securityholders.........................18
SECTION 4.2 Preservation and Disclosure of Securityholders' Lists....18
SECTION 4.3 Reports by the Issuer....................................18
SECTION 4.4 Reports by the Trustee...................................19
ARTICLE FIVE REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON
EVENT OF DEFAULT....................................................19
SECTION 5.1 Event of Default Defined; Acceleration of Maturity;
Waiver of Default........................................19
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SECTION 5.2 Collection of Indebtedness by Trustee; Trustee
May Prove Debt...........................................21
SECTION 5.3 Application of Proceeds..................................23
SECTION 5.4 Suits for Enforcement....................................24
SECTION 5.5 Restoration of Rights on Abandonment of Proceedings......24
SECTION 5.6 Limitations on Suits by Securityholders..................24
SECTION 5.7 Unconditional Right of Securityholders to Institute
Certain Suits............................................25
SECTION 5.8 Powers and Remedies Cumulative; Delay or Omission
Not Waiver of Default....................................25
SECTION 5.9 Control by Securityholders...............................25
SECTION 5.10 Waiver of Past Defaults.................................26
SECTION 5.11 Trustee to Give Notice of Default, But May Withhold
in Certain Circumstances................................26
SECTION 5.12 Right of Court to Require Filing of Undertaking
to Pay Costs............................................27
ARTICLE SIX CONCERNING THE TRUSTEE............................................27
SECTION 6.1 Duties and Responsibilities of the Trustee;
During Default; Prior to Default.........................27
SECTION 6.2 Certain Rights of the Trustee............................28
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition
of Securities or Application of Proceeds Thereof.........29
SECTION 6.4 Trustee and Agents May Hold Securities;
Collections, etc.........................................29
SECTION 6.5 Moneys Held by Trustee...................................29
SECTION 6.6 Compensation and Indemnification of Trustee and
Its Prior Claim..........................................30
SECTION 6.7 Right of Trustee to Rely on Officers'
Certificate, etc.........................................30
SECTION 6.8 Conflicting Interests....................................30
SECTION 6.9 Persons Eligible for Appointment as Trustee..............30
SECTION 6.10 Resignation and Removal; Appointment of
Successor Trustee.......................................31
SECTION 6.11 Acceptance of Appointment by Successor Trustee..........32
SECTION 6.12 Merger, Conversion, Consolidation or Succession
to Business of Trustee..................................33
SECTION 6.13 Preferential Collection of Claims Against the Issuer....33
ARTICLE SEVEN CONCERNING THE SECURITYHOLDERS..................................33
SECTION 7.1 Evidence of Action Taken by Securityholders..............33
SECTION 7.2 Proof of Execution of Instruments and of Holding
of Securities............................................34
SECTION 7.3 Holders to be Treated as Owners..........................34
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding........35
SECTION 7.5 Right of Revocation of Action Taken......................35
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ARTICLE EIGHT SUPPLEMENTAL INDENTURES.........................................35
SECTION 8.1 Supplemental Indentures Without Consent
of Securityholders......................................36
SECTION 8.2 Supplemental Indentures With Consent
of Securityholders......................................37
SECTION 8.3 Effect of Supplemental Indenture........................37
SECTION 8.4 Documents to Be Given to Trustee........................38
SECTION 8.5 Notation on Securities in Respect of
Supplemental Indentures.................................38
ARTICLE NINE CONSOLIDATION, MERGER, SALE OR CONVEYANCE........................38
SECTION 9.1 Issuer May Consolidate, etc., on Certain Terms..........38
SECTION 9.2 Successor Corporation Substituted.......................38
SECTION 9.3 Opinion of Counsel to Trustee...........................39
ARTICLE TEN SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS.........39
SECTION 10.1 Satisfaction and Discharge of Indenture................39
SECTION 10.2 Application by Trustee of Funds Deposited for
Payment of Securities..................................40
SECTION 10.3 Repayment of Moneys Held by Paying Agent...............40
SECTION 10.4 Return of Moneys Held by Trustee and Paying
Agent Unclaimed for Three Years........................40
ARTICLE ELEVEN REDEMPTION OF SECURITIES AND SINKING FUNDS.....................41
SECTION 11.1 Applicability of Article...............................41
SECTION 11.2 Notice of Redemption; Partial Redemptions..............41
SECTION 11.3 Payment of Securities Called for Redemption............42
SECTION 11.4 Exclusion of Certain Securities from Eligibility
for Selection for Redemption...........................43
SECTION 11.5 Mandatory and Optional Sinking Funds...................43
ARTICLE TWELVE DEFEASANCE.....................................................45
SECTION 12.1. Applicability of Article: Issuer's Option to
Effect Defeasance.....................................45
SECTION 12.2 Defeasance and Discharge...............................45
SECTION 12.3 Covenant Defeasance....................................45
SECTION 12.4 Conditions to Defeasance...............................46
ARTICLE THIRTEEN MISCELLANEOUS PROVISIONS.....................................47
SECTION 13.1 Incorporators, Stockholders, Officers and Directors
of Issuer Exempt from Individual Liability.............47
SECTION 13.2 Provisions of Indenture for the Sole Benefit of
Parties and Securityholders............................47
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SECTION 13.3 Successors and Assigns of Issuer Bound by Indenture....48
SECTION 13.4 Notices and Demands on Issuer, Trustee and
Securityholders........................................48
SECTION 13.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein.....................48
SECTION 13.6 Payments Due on Saturdays, Sundays and Holidays........49
SECTION 13.7 Conflict of Any Provision of Indenture with
Trust Indenture Act....................................49
SECTION 13.8 New York Law to Govern.................................50
SECTION 13.9 Counterparts...........................................50
SECTION 13.10 Effect of Headings....................................50
SECTION 13.11 Securities in a Foreign Currency......................50
SECTION 13.12 Judgment Currency.....................................50
TESTIMONIUM...................................................................50
SIGNATURES....................................................................50
ACKNOWLEDGMENTS...............................................................52
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THIS INDENTURE, dated as of [_________], 1998 between EMERSON
ELECTRIC CO., a Missouri corporation (the "Issuer"), and THE BANK OF NEW YORK, a
New York banking corporation (the "Trustee"),
W I T N E S S E T H:
WHEREAS, the Issuer has duly authorized the issue from time to
time of its unsecured debentures, notes and other evidences of indebtedness to
be issued in one or more series (the "Securities") up to such principal amount
or amounts as may from time to time be authorized in accordance with the terms
of this Indenture and to provide, among other things, for the authentication,
delivery and administration thereof, the Issuer has duly authorized the
execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the receipt and sufficiency of which is
hereby acknowledged, the Issuer and the Trustee mutually covenant and agree for
the equal and proportionate benefit of the respective holders from time to time
of the Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms (except as otherwise
expressly provided or unless the context otherwise clearly requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section. All other terms used in this
Indenture that are defined in the Trust Indenture Act or the definitions of
which in the Securities Act of 1933 are referred to in the Trust Indenture Act,
including terms defined therein by reference to the Securities Act of 1933
(except as herein otherwise expressly provided or unless the context otherwise
clearly requires), shall have the meanings assigned to such terms in said Trust
Indenture Act and in said Securities Act as in force at the date of this
Indenture. All accounting terms used herein and not expressly defined shall have
the meanings assigned to such terms in accordance with generally accepted
accounting principles, and the term "generally accepted accounting principles"
means such accounting principles as are generally accepted at the time of any
computation. 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. The terms defined in this Article have
the meanings assigned to them in this Article and include the plural as well as
the singular.
"Board of Directors" means either the Board of Directors of the Issuer or
any committee of such Board duly authorized to act hereunder.
"Business Day" means, with respect to any Security, a day that in the city
(or in any of the cities, if more than one) in which amounts are payable, as
specified in the form of such Security, is not a day on which banking
institutions are authorized by law or regulation to close.
"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 and delivery of this Indenture such Commission is
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not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Consolidated Net Tangible Assets" means the aggregate amount of assets
after deducting therefrom (a) all current liabilities (excluding liabilities
which could be classified as long-term debt in conformity with generally
accepted accounting principles) and (b) all goodwill, trade names, trademarks,
patents, unamortized debt discount and expense and deferred charges (other than
prepaid items such as insurance, taxes, interest, commissions, rents and similar
items and tangible assets being amortized), all as set forth on the most recent
quarterly consolidated balance sheet of the Issuer and its consolidated
Subsidiaries and computed in accordance with generally accepted accounting
principles.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
administered, which office is, at the date as of which this Indenture is dated,
located at 101 Barclay Street, New York, New York 10286, Attention: Corporate
Trust Administration.
"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in the form of one or more Global Securities, the
Person designated as Depositary by the Issuer pursuant to Section 2.3 until a
successor Depositary shall have become such pursuant to the applicable
provisions hereof, and thereafter "Depositary" shall mean or include each Person
who is then a Depositary hereunder, and if at any time there is more than one
such Person, "Depositary" as used with respect to the Securities of any such
series shall mean the Depositary with respect to the Securities of that series.
"Event of Default" means any event or condition specified as such in
Section 5.1.
"Exchange Rate Agent" means the Trustee or other agent designated to make
calculations of the Market Exchange Rate in respect of the Securities of any
series, as specified pursuant to Section 2.3
"Global Security" means a Security evidencing all or a part of a series of
Securities, issued to the Depositary for such series in accordance with Section
2.4, and bearing the legend prescribed in Section 2.4.
"Holder", "holder of securities", "Securityholder" or other similar terms
mean the registered holder of any Security.
"Indenture" means this instrument as originally executed and delivered or,
if amended or supplemented as herein provided, as so amended or supplemented or
both, and shall include the forms and terms of particular series of Securities
established as contemplated hereunder.
"Interest" means, when used with respect to non-interest bearing
Securities, interest payable after maturity.
"Issuer" means (except as otherwise provided in Article Six) Emerson
Electric Co., a Missouri corporation, and, subject to Article Nine, its
successors and assigns.
"Market Exchange Rate" means, for any amount in respect of Securities of
any series which is expressed in a currency other than U.S. dollars (unless
otherwise provided in respect of such series pursuant to Section 2.2), the
amount in U.S. dollars calculated by the Exchange Rate Agent on the basis of the
highest bid quotation in The City of New York received by the Exchange Rate
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Agent as of 11:00 a.m., New York time, on the Business Day as of which the
Market Exchange Rate is to be determined, from three recognized dealers (one of
which may be the Exchange Rate Agent) for the purchase by the quoting dealer of
such other currency for settlement on such date in the aggregate amount of such
other currency in respect of which the Market Exchange Rate is being determined,
and at which the applicable dealer commits to execute an exchange contract.
"Officers' Certificate" means a certificate signed by the chairman of the
Board of Directors or any vice chairman of the Board of Directors or the
president or any vice president and by the treasurer or the secretary or any
assistant secretary of the Issuer and delivered to the Trustee. Each such
certificate shall include the statements provided for in Section 13.5.
"Opinion of Counsel" means an opinion in writing signed by legal counsel
who may be an employee of or counsel to the Issuer and who shall be satisfactory
to the Trustee. Each such opinion shall include the statements provided for in
Section 13.5, if and to the extent required hereby.
"Original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.1.
"Outstanding" (except as otherwise provided in Section 6.8), when used with
reference to Securities, shall, subject to the provisions of Section 7.4, mean,
as of any particular time, all Securities authenticated and delivered by the
Trustee under this Indenture, except
(a) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of which
moneys in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Issuer) or shall have been set
aside, segregated and held in trust by the Issuer for the holders of such
Securities (if the Issuer shall act as its own paying agent); provided that if
such Securities, or portions thereof, are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as herein provided, or
provision satisfactory to the Trustee shall have been made for giving such
notice;
(c) Securities in substitution for which other Securities shall have been
authenticated and delivered, or which shall have been paid, pursuant to the
terms of Section 2.9 (except with respect to any such Security as to which proof
satisfactory to the Trustee is presented that such Security is held by a Person
in whose hands such Security is a legal, valid and binding obligation of the
Issuer); and
(d) Except to the extent provided in Sections 12.2 and 12.3, Securities
with respect to which the Issuer has effected defeasance and/or covenant
defeasance as provided in Article Twelve.
In determining whether the holders of the requisite principal amount of
Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (i) the principal
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amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof pursuant to Section 5.1, (ii) the
principal amount of any Securities denominated in any currency other than U.S.
dollars shall be deemed to be the U.S. dollar equivalent amount calculated at
the Market Exchange Rate at the date of determination and (iii) the principal
amount of any Security the principal of which is determined with reference to an
index based on a currency other than that in which the Securities of the series
are denominated that shall be deemed to be the principal face amount of such
indexed Security as of its original issuance date.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"principal" whenever used with reference to the Securities or any Security
or any portion thereof, shall be deemed to include "and premium, if any".
"Principal Property" shall mean any manufacturing plant or manufacturing
facility owned by the Issuer or any Restricted Subsidiary which is located
within the continental United States and, in the opinion of the Board of
Directors, is of material importance to the total business conducted by the
Issuer and the Restricted Subsidiaries taken as a whole.
"record date" has the meaning given in Section 2.7.
"Responsible Officer" shall mean, when used with respect to the Trustee,
any officer within the corporate trust department of the Trustee, including any
vice president, assistant vice president, assistant secretary, assistant
treasurer, trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of such person's knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Restricted Subsidiary" shall mean any Subsidiary (i) substantially all the
property of which is located within the continental United States of America and
(ii) which owns any Principal Property; provided, however, that the term
"Restricted Subsidiary" shall not include any Subsidiary which is principally
engaged in leasing or in financing installment receivables or which is
principally engaged in financing the Issuer's operations outside the continental
United States of America.
"Security" or "Securities" (except as otherwise provided in Section 6.8)
has the meaning stated in the first recital of this Indenture, or, as the case
may be, Securities that have been authenticated and delivered under this
Indenture.
"Subsidiary" shall mean any corporation of which stock having by the terms
thereof ordinary voting power to elect at least a majority of the board of
directors of said corporation (irrespective of whether at the time stock of any
other class or classes of such corporation shall have or might have voting power
by reason of the happening of any contingency) is at the time directly or
indirectly owned by the Issuer or by the Issuer and one or more Subsidiaries or
by one or more Subsidiaries.
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"Trustee" means the Person identified as "Trustee" in the first paragraph
hereof and, subject to the provisions of Article Six, shall also include any
successor trustee.
"Trust Indenture Act" (except as otherwise provided in Sections 8.1 and
8.2) means the Trust Indenture Act of 1939 as amended by the Trust Indenture
Reform Act of 1990 and in force at the date as of which this Indenture was
originally executed.
"U.S. Government Obligations" means securities that are (x) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (y) 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, 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 principal of or interest on
any such U.S. Government Obligation held by such custodian for the account of
the holder of such 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.
"vice president" when used with respect to the Issuer or the Trustee, means
any vice president, whether or not designated by a number or a word or words
added before or after the title of "vice president".
"Yield to Maturity" means the yield to maturity on a series of Securities,
calculated at the time of issuance of such series, or, if applicable, at the
most recent redetermination of interest on such series, and calculated in
accordance with accepted financial practice.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series shall be
substantially in such form (including global form) (not inconsistent with this
Indenture) as shall be established by or pursuant to a resolution of the Board
of Directors or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture and may have imprinted or otherwise
reproduced thereon such legend or legends, not inconsistent with the provisions
of this Indenture, as may be required to comply with any law or with any rules
or regulations pursuant thereto, or with any rules of any securities exchange or
to conform to general usage, all as may be determined by the officers executing
such Securities, as evidenced by their execution of the Securities.
If any Security of a series is issuable in the form of a Global Security or
Securities, each such Global Security may provide that it shall represent the
aggregate amount of Outstanding Securities from time to time endorsed thereon
and may also provide that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced to reflect exchanges. Any
endorsement of a Global Security to reflect the amount of Outstanding Securities
represented thereby shall be made by the Trustee and in such manner as shall be
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specified on such Global Security. Any instructions by the Issuer with respect
to a Global Security, after its initial issuance, shall be in writing but need
not comply with Section 13.5.
The definitive Securities shall be printed, lithographed or produced in any
other manner, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
SECTION 2.2 Form of Trustee's Certificate of Authentication. The Trustee's
certificate of authentication on all Securities shall be in substantially the
following form:
This is one of the Securities described in the within-mentioned Indenture.
Dated: The Bank of New York
as Trustee
By:
-----------------------------
Authorized Signatory
SECTION 2.3 Amount Unlimited; Issuable in Series. The aggregate principal
amount of securities which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a resolution of the Board of Directors and set
forth 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 shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 2.8, 2.9, 2.11, 5.3, 8.5
or 12.3);
(3) if other than U.S. dollars, the currency, currencies or
currency units in which the principal of, premium, if any, and
interest on the Securities of the series is payable, and the Person
who shall serve as Exchange Rate Agent for purposes of making any
related calculations of the Market Exchange Rate;
(4) the date or dates on which the principal of the Securities of
the series is payable, or the method by which such date or dates will
be determined or extended;
(5) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate or rates shall
be determined, the date or dates from which such interest shall
accrue, or the method by which such date or dates shall be determined,
the interest payment dates on which such interest shall be payable and
the record dates for the determination of Holders to whom interest is
payable;
(6) the place or places where the principal and any interest on
Securities of the series shall be payable (if other than as provided
in Section 3.2);
(7) the price or prices at which, the period or periods within
which and the terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Issuer,
pursuant to any sinking fund or otherwise;
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(8) the obligation, if any, of the Issuer to redeem, purchase or
repay Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
price or prices at which and the period or periods within which and
the terms and conditions upon which Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(9) if other than denominations of $1,000 and any multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(10) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof
pursuant to Section 5.1 or provable in bankruptcy pursuant to Section
5.2;
(11) any limitations on the applicability of Section 12.2 or 12.3
to the Securities of the series;
(12) any authenticating or paying agents, transfer agents or
registrars, if other than the Trustee, or any other agents with
respect to the Securities of such series;
(13) the coin or currency in which the Securities of that series
are denominated and, if other than the coin or currency in which the
Securities of that series are denominated, the coin or currency in
which payment of the principal of, premium, if any, and/or interest,
if any, on the Securities of such series shall be payable;
(14) if the amount of payments of principal of, premium, if any,
and interest, if any, on the Securities of the series may be
determined with reference to an index based on a coin or currency
other than that in which the Securities of the series are denominated,
the manner in which such amounts shall be determined;
(15) whether the Securities of such series shall be issued in
whole or in part in the form of one or more Global Securities and, in
such case, the Depositary for such Global Security or Securities and
whether beneficial owners of interests in any such Global Securities
may exchange such interests for other Securities of such series in the
manner provided in Section 2.8, and the manner and the circumstances
under which and the place or places where any such exchanges may occur
if other than in the manner provided in Section 2.8, and any other
terms of the series relating to the global nature of the Securities of
such series and the exchange, registration or transfer thereof and the
payment of any principal thereof, or interest or premium, if any,
thereon; and
(16) any Events of Default with respect to the Securities of such
Series which may be in addition to those provided herein, and any
covenants or obligations of the Issuer to the Holders of such
Securities in addition to those set forth herein;
(17) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to such
resolution of the Board of Directors or in any such indenture supplemental
hereto. Except as provided in such resolution, the Securities of any one series
need not be issued at the same time and a series may be reopened without the
consent of the Holders, for issuances of additional Securities of such series.
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SECTION 2.4 Authentication and Delivery of Securities. At any time and from
time to time after the execution and delivery of this Indenture, the Issuer may
deliver Securities of any series executed by the Issuer to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver such
Securities to or upon the written order of the Issuer, signed by both (a) the
chairman of its Board of Directors, or any vice chairman of its Board of
Directors, or its president or any vice president and (b) by its treasurer or
any assistant treasurer, without any further action by the Issuer. If any
Security of a series shall be represented by a Global Security, then, for
purposes of this Section and Section 2.11, the notation of the record owner's
interest therein upon original issuance of such Security shall be deemed to be
delivery in connection with the original issuance of each beneficial owner's
interest in such Global Security. In authenticating such Securities and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 6.1) shall be fully protected in relying upon:
(a) a certified copy of any resolution or resolutions of the Board of
Directors authorizing the action taken pursuant to the resolution or
resolutions delivered under clause (2) below;
(b) a copy of any resolution or resolutions of the Board of Directors
relating to such series, in each case certified by the secretary or an
assistant secretary of the Issuer;
(c) an executed supplemental indenture, if any;
(d) an Officers' Certificate setting forth the form and terms of the
Securities as required pursuant to Section 2.1 and 2.3, respectively and
prepared in accordance with Section 13.5; and
(e) an Opinion of Counsel, prepared in accordance with Section 13.5,
which shall state
(i) if the form or forms of such Securities have been established by
or pursuant to a resolution or resolutions of the Board of Directors or
by a supplemental indenture as permitted by Section 2.1, that such form
or forms have been established in conformity with the provisions of
this Indenture;
(ii) if the terms of such Securities have been established by or
pursuant to a resolution or resolutions of the Board of Directors or by
a supplemental indenture as permitted by Section 2.3, that such terms
have been established in conformity with the provisions of this
Indenture;
(iii) that such Securities, when authenticated and delivered by the
Trustee and issued by the Issuer in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Issuer enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles; and
(iv) such other matters as the Trustee may reasonably request.
If the Issuer shall establish pursuant to Section 2.3 that the Securities
of a series are to be issued in whole or in part in the form of one or more
Global Securities, then the Issuer shall execute and the Trustee shall, in
accordance with this Section and the authentication order of the Issuer with
respect to such series, authenticate and deliver one or more Global Securities
in temporary or permanent form that shall (i) represent and be denominated in an
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aggregate amount equal to the aggregate principal amount of the Outstanding
Securities of such series to be represented by one or more Global Securities,
(ii) be registered in the name of the Depositary for such Global Security or
Securities or the nominee of such Depositary, (iii) be delivered by the Trustee
to such Depositary or pursuant to such Depositary's instruction; and (iv) bear a
legend substantially to the following effect or in other form satisfactory to
the Depositary: "Unless and until it is exchanged in whole or in part for
Securities in definitive form, this Security may not be transferred except as a
whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any nominee to a successor Depositary or a nominee of any
successor Depositary."
Each Depositary designated pursuant to Section 2.3 for a Global Security in
registered form must, at the time of its designation and at all times while it
serves as a Depositary, be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and shall be eligible to serve as such under
any other applicable statute or regulation.
The Trustee shall have the right to decline to authenticate and deliver any
Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken by the Issuer or if the
Trustee in good faith by its board of directors or board of trustees, executive
committee, or a trust committee of directors or trustees or Responsible Officers
shall determine that such action would expose the Trustee to personal liability
to existing Holders or would affect the Trustee's rights, duties or immunities
under the Securities or this Indenture.
SECTION 2.5 Execution of Securities. The Securities shall be signed on
behalf of the Issuer by both (a) the chairman of its Board of Directors or any
vice chairman of its Board of Directors or its president or any vice president
and (b) by its treasurer or any assistant treasurer or its secretary or any
assistant secretary, under its corporate seal which may, but need not, be
attested. Such signatures may be manual or facsimile. The seal of the Issuer may
be in the form of a facsimile thereof and may be impressed, affixed, imprinted
or otherwise reproduced on the Securities. Typographical and other minor errors
or defects in any such reproduction of the seal or any such signature shall not
affect the validity or enforceability of any Security that has been duly
authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Issuer, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Issuer; and any Security may be signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only such Securities as shall
bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one of
its authorized signatories, shall be entitled to the benefits of this Indenture
or be valid or obligatory for any purpose. Such certificate by the Trustee upon
any Security executed by the Issuer shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder
and that the holder is entitled to the benefits of this Indenture.
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SECTION 2.7 Denomination and Date of Securities; Payments of Interest. The
Securities shall be issuable as registered securities without coupons and in
denominations as shall be specified as contemplated by Section 2.3. In the
absence of any such specification with respect to the Securities of any series,
the Securities of such series shall be issuable in denominations of $1,000 and
any multiple thereof. The Securities shall be numbered, lettered, or otherwise
distinguished in such manner or in accordance with such plan as the officers of
the Issuer executing the same may determine with the approval of the Trustee as
evidenced by the execution and authentication thereof.
Each Security shall be dated the date of its authentication, shall bear
interest, if any, from the date and shall be payable on the dates, in each case,
which shall be specified as contemplated by Section 2.3.
The Person in whose name any Security of any series is registered at the
close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the extent
the Issuer shall default in the payment of the interest due on such interest
payment date for such series, in which case such defaulted interest shall be
paid to the Persons in whose names Outstanding Securities for such series are
registered at the close of business on a subsequent record date (which shall be
not less than five Business Days prior to the date of payment of such defaulted
interest) established by notice given by mail by or on behalf of the Issuer to
the holders of Securities not less than 15 days preceding such subsequent record
date. The term "record date" as used with respect to any interest payment date
(except a date for payment of defaulted interest) shall mean the date specified
as such in the terms of the Securities of any particular series, or, if no such
date is so specified, if such interest payment date is the first day of a
calendar month, the fifteenth day of the next preceding calendar month or, if
such interest payment date is the fifteenth day of a calendar month, the first
day of such calendar month, whether or not such record date is a Business Day.
SECTION 2.8 Registration, Transfer and Exchange. With respect to each
series of Securities, the Issuer will cause to be kept at each office or agency
to be maintained for the purpose as provided in Section 3.2 a register or
registers in which, subject to such reasonable regulations as it may prescribe,
it will provide for the registration and transfer thereof as in this Article
provided. Such register shall be in written form in the English language or in
any other form capable of being converted into such form within a reasonable
time. In the event that such registers are not maintained by the Trustee, at all
reasonable times such register or registers shall be open for inspection by the
Trustee.
Upon due presentation for registration of transfer of any Security of any
series at any such office or agency to be maintained for the purpose as provided
in Section 3.2, the Issuer shall execute and the Trustee shall authenticate and
deliver in the name of the transferee or transferees a new Security or
Securities of the same series in authorized denominations for a like aggregate
principal amount.
Notwithstanding any other provision of this Section, unless and until it is
exchanged in whole or in part for Securities in definitive form, a Global
Security representing all or a portion of the Securities of a series may not be
transferred except as a whole by the Depositary for such series to a nominee of
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such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor Depositary.
Any Security or Securities of any series (other than a Global Security,
except as set forth herein) may be exchanged for a Security or Securities of the
same series in other authorized denominations, in an equal aggregate principal
amount. Securities of any series to be exchanged shall be surrendered at any
office or agency to be maintained by the Issuer for the purpose as provided in
Section 3.2, and the Issuer shall execute and the Trustee shall authenticate and
deliver in exchange therefor the Security or Securities of the same series which
the Securityholder making the exchange shall be entitled to receive, bearing
numbers not contemporaneously outstanding.
If at any time the Depositary for the Securities of a series notifies the
Issuer that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under Section 2.4, the Issuer shall
appoint a successor Depositary with respect to the Securities of such series. If
a successor Depositary for the Securities of such series is not appointed by the
Issuer within 90 days after the Issuer receives such notice or becomes aware of
such ineligibility, the Issuer's election pursuant to Section 2.3(15) shall no
longer be effective with respect to the Securities of such series and the Issuer
will execute, and the Trustee, upon receipt of an order of the Issuer for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver Securities of such series in definitive form in the
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such series in exchange for such Global Security or
Securities.
The Issuer may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In the
event of such a determination by the Issuer or if an Event of Default has
occurred and is continuing and the beneficial owners representing a majority in
principal amount of the applicable series of Securities represented by one or
more Global Securities advise the Depositary to cease acting as depositary for
such Global Security or Securities, the Issuer will execute, and the Trustee,
upon receipt of an order of the Issuer for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver Securities
of such series in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.
If specified by the Issuer pursuant to Section 2.3 with respect to a series
of Securities, the Depositary for such series of Securities may surrender a
Global Security for such series of Securities in exchange in whole or in part
for the Securities of such series in definitive form on such terms as are
acceptable to Issuer and such Depositary. Thereupon, the Issuer shall execute,
and the Trustee shall authenticate and deliver, without service charge:
(1) to each Person specified by such Depositary a new Security or
Securities of the same series, of any authorized denomination as requested by
such Person in aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Global Security; and
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(2) to such Depositary a new Global Security in a denomination equal to the
difference, if any, between the principal amount of the surrendered Global
Security and the aggregate principal amount of Securities delivered to Holders
thereof.
Upon the exchange of the Global Security for Securities in definitive form,
such Global Security shall be cancelled by the Trustee. Securities issued in
exchange for a Global Security pursuant to this Section shall be registered in
such names and in such authorized denominations as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Securities to the Persons in whose names such Securities are so registered.
All Securities presented for registration of transfer, exchange, redemption
or payment shall (if so required by the Issuer) be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Issuer and the Security registrar duly executed by, the
holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities. No service charge shall be made for any
such transaction.
The Issuer shall not be required to exchange or register a transfer of (a)
any Securities of any series for a period of 15 days next preceding the date of
selection of Securities of such series to be redeemed, or (b) any Securities
selected, called or being called for redemption except, in the case of any
Security where public notice has been given that such Security is to be redeemed
in part, the portion thereof not so to be redeemed.
All Securities issued upon any transfer or exchange of Securities shall be
valid obligations of the Issuer, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In
case any temporary or definitive Security shall become mutilated, defaced or be
destroyed, lost or stolen, the Issuer in its discretion may execute, and upon
the written request of any officer of the Issuer, the Trustee shall authenticate
and deliver, a new Security of the same series, bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated or
defaced Security, or in lieu of and substitution for the Security so destroyed,
lost or stolen. In every case the applicant for a substitute Security shall
furnish to the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as may be required by them to indemnify and
defend and to save each of them harmless and, in every case of destruction, loss
or theft, evidence to their satisfaction of the destruction, loss or theft of
such Security and of the ownership thereof.
Upon the issuance of any substitute Security, the Issuer may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith. In case any Security which has
matured or is about to mature or has been called for redemption in full shall
become mutilated or defaced or be destroyed, lost or stolen, the Issuer may,
instead of issuing a substitute Security, pay or authorize the payment of the
same (without surrender thereof except in the case of a mutilated or defaced
Security), if the applicant for such payment shall furnish to the Issuer and to
the Trustee and any agent of the Issuer or the Trustee such security or
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indemnity as any of them may require to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Issuer and the Trustee and any agent of the Issuer or the Trustee evidence
to their satisfaction of the destruction, loss or theft of such Security and of
the ownership thereof.
Every substitute Security of any series issued pursuant to the provisions
of this Section by virtue of the fact that any such Security is destroyed, lost
or stolen shall constitute an additional contractual obligation of the Issuer,
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 (but shall be
subject to all the limitations of rights set forth in) this Indenture equally
and proportionately with any and all other Securities of such series duly
authenticated and delivered hereunder. All Securities shall be held and owned
upon the express condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, defaced or destroyed, lost or stolen Securities and shall preclude
any and all other rights or remedies notwithstanding any law or statute existing
or hereafter enacted to the contrary with respect to the replacement or payment
of negotiable instruments or other securities without their surrender.
SECTION 2.10 Cancellation of Securities; Destruction Thereof. Unless
otherwise provided with respect to any series of Securities, all Securities
surrendered for payment, redemption, registration of transfer or exchange, or
for credit against any payment in respect of a sinking or analogous fund, if
surrendered to the Issuer or any agent of the Issuer or the Trustee, shall be
delivered to the Trustee for cancellation or, if surrendered to the Trustee,
shall be cancelled by it; and no Securities shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this Indenture. The
Trustee shall cancel Securities held by it and deliver a certificate of
cancellation to the Issuer at the Issuer's written direction. If the Issuer
shall acquire any of the Securities, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are delivered to the Trustee for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of a permanent
Global Security or Securities or definitive Securities for any series, the
Issuer may execute and the Trustee shall authenticate and deliver temporary
Securities for such series or one or more temporary Global Securities (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as registered Securities without coupons, of any authorized
denomination, and substantially in the form of the definitive Securities or
permanent Global Security, as the case may be, of such series but with such
omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Issuer with the concurrence of the
Trustee. Temporary Securities may contain such reference to any provisions of
this Indenture as may be appropriate. Every temporary Security shall be executed
by the Issuer and be authenticated by the Trustee upon the same conditions and
in substantially the same manner, and with like effect, as the definitive
Securities. Without unreasonable delay the issuer shall execute and shall
furnish a permanent Global Security or Securities or definitive Securities of
such series and thereupon temporary Securities of such series may be surrendered
in exchange therefor without charge at each office or agency to be maintained by
the Issuer for that purpose pursuant to Section 3.2, and the Trustee shall
authenticate and deliver in exchange for such temporary Securities of such
series a like aggregate principal amount of permanent global securities or
definitive Securities of the same series of authorized denominations. Until so
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exchanged, the temporary Securities of any series shall be entitled to the same
benefits under this Indenture as permanent global securities or definitive
Securities of such series.
SECTION 2.12 CUSIP Numbers. The Issuer in issuing the Securities may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Issuer will
promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The Issuer covenants and
agrees for the benefit of the Holders of each series of Securities that it will
duly and punctually pay or cause to be paid the principal of, and interest on,
each of the Securities of such series at the office or agency of the Issuer
maintained for such purpose pursuant to Section 3.2 or at such other place or
places, at the respective times and in the manner provided in such Securities.
Unless otherwise specified with respect to the Securities of any series in
accordance with Section 2.3, at the option of the Issuer, each installment on
any such series may be paid (i) by mailing a check for such interest, payable to
or upon the written order of the Person entitled thereto pursuant to Section
2.7, to the address of such Person as it appears on the Security register or
(ii) by wire transfer to an account maintained by the payee and located inside
the United States.
SECTION 3.2 Offices for Payments, etc. So long as any of the Securities
remain outstanding, the Issuer will maintain the following for each series: an
office or agency (a) where the Securities may be presented for payment, (b)
where the Securities may be presented for registration of transfer and for
exchange as in this Indenture provided and (c) where notices and demands to or
upon the Issuer in respect of the Securities or of this Indenture may be served.
The Issuer will give to the Trustee written notice of the location of any such
office or agency and of any change of location thereof. Unless otherwise
specified in accordance with Section 2.3, the Issuer hereby appoints the Trustee
as paying agent and registrar and designates the Corporate Trust Office of The
Bank of New York, 101 Barclay Street, New York, New York 10286, as the office to
be maintained by it for each such purpose. In case the Issuer shall fail to so
designate or maintain any such office or agency or shall fail to give such
notice of the location or any change in the location thereof, presentations and
demands may be made and notices may be served at the Corporate Trust Office.
SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee. The Issuer,
whenever necessary to avoid or fill a vacancy in the office of Trustee, will
appoint, in the manner provided in Section 6.10, a Trustee, so that there shall
at all times be a Trustee with respect to each series of Securities hereunder.
SECTION 3.4 Paying Agents. Whenever the Issuer shall appoint a paying agent
other than the Trustee with respect to the Securities of any series, it will
cause such paying agent to execute and deliver to the Trustee an instrument in
which such agent shall agree with the Trustee, subject to the provisions of this
Section,
(a) that it will hold all sums received by it as such agent for the payment
of the principal of or interest on the Securities of such series (whether such
sums have been paid to it by the Issuer or by any other obligor on the
Securities of such series) in trust for the benefit of the holders of the
Securities of such series or of the Trustee, and
(b) that it will give the Trustee notice of any failure by the Issuer (or
by any other obligor on the Securities of such series) to make any payment of
the principal of or interest on the Securities of such series when the same
shall be due and payable.
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The Issuer will, on or prior to each due date of the principal of or
interest on the Securities of such series, deposit with the paying agent a sum
sufficient to pay such principal or interest so becoming due, and (unless such
paying agent is the Trustee) the Issuer will promptly notify the Trustee of any
failure to take such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the principal
of or interest on the Securities of such series, set aside, segregate and hold
in trust for the benefit of the holders of the Securities of such series a sum
sufficient to pay such principal or interest so becoming due. The Issuer will
promptly notify the Trustee of such action.
Anything in this Section to the contrary notwithstanding, the Issuer may at
any time, for the purpose of obtaining a satisfaction and discharge with respect
to one or more or all series of Securities hereunder, or for any other reason,
pay or cause to be paid to the Trustee all sums held in trust for any such
series by the Issuer or any paying agent hereunder, as required by this Section,
such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the agreement to
hold sums in trust as provided in this Section is subject to the provisions of
Sections 10.3 and 10.4.
SECTION 3.5 Written Statement to Trustee. The Issuer will deliver to the
Trustee on or before May 1 in each year, a brief certificate from its principal
executive, accounting or financial officer (which need not comply with Section
13.5), as to his or her knowledge of the Issuer's compliance with all conditions
and covenants in this Indenture (without regard to any period of grace or
requirement of notice provided under this Indenture).
SECTION 3.6 Limitation on Liens. (a) So long as the Securities of any
series are outstanding, the Issuer will not, nor will it permit any Restricted
Subsidiary to, issue, assume or guarantee any debt for money borrowed
(hereinafter in this Article Three referred to as "Debt"), secured by a
mortgage, security interest, pledge, lien or other encumbrance (mortgages,
security interests, pledges, liens and other encumbrances being hereinafter
called "mortgage" or "mortgages") upon any Principal Property of the Issuer or
any Restricted Subsidiary or upon any shares of stock or indebtedness of any
Restricted Subsidiary (whether such Principal Property, shares of stock or
indebtedness are now owned or hereafter acquired) without in any such case
effectively providing concurrently with the issuance, assumption or guaranty of
any such Debt that the Securities (together with, if the Issuer shall so
determine, any other indebtedness of or guaranteed by the Issuer or such
Restricted Subsidiary ranking equally with the Securities and then existing or
thereafter created) shall be secured equally and ratably with such Debt;
provided, however, that the foregoing restrictions shall not apply to Debt
secured by
(i) mortgages on property, shares of stock or indebtedness
of any corporation existing at the time such corporation becomes a Restricted
Subsidiary;
(ii) mortgages on property existing at the time of acquisition of
such property by the Issuer or a Restricted Subsidiary, or mortgages to secure
the payment of all or any part of the purchase price of such property upon the
acquisition of such property by the Issuer or a Restricted Subsidiary or to
secure any Debt incurred prior to, at the time of, or within 120 days after, the
acquisition of such property for the purpose of financing all or any part of the
purchase price thereof, or mortgages to secure any Debt incurred for the purpose
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of financing all or any part of the cost to the Issuer or a Restricted
Subsidiary of improvements to such acquired property;
(iii) mortgages securing Debt of a Restricted Subsidiary owing to
the Issuer or to another Restricted Subsidiary;
(iv) mortgages existing at the date as of which this Indenture is
executed;
(v) mortgages on property of a corporation existing at the time
such corporation is merged into or consolidated with the Issuer or a Restricted
Subsidiary or at the time of a sale, lease or other disposition of the
properties of a corporation as an entirety or substantially as an entirety to
the Issuer or a Restricted Subsidiary;
(vi) mortgages on property owned by the Issuer or a Restricted
Subsidiary in favor of the United States of America or any State thereof, or any
department, agency or instrumentality or political subdivision of the United
States of America or any State thereof, or in favor of any other country, or any
political subdivision thereof, to secure partial, progress, advance or other
payments pursuant to any contract or statute or to secure any indebtedness
incurred for the purpose of financing all or any part of the purchase price or
the cost of construction of the property subject to such mortgages; or
(vii) any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any mortgage
referred to in the foregoing clauses (i) to (vi), inclusive; provided, however,
that the principal amount of Debt secured thereby shall not exceed the principal
amount of Debt secured at the time of such extension, renewal or replacement,
and that such extension, renewal or replacement shall be limited to all or a
part of the property which secured the mortgage so extended, renewed or replaced
(plus improvements on such property).
(b) Notwithstanding the foregoing provisions of this Section 3.6
the Issuer and any one or more Restricted Subsidiaries may issue, assume or
guarantee Debt secured by a mortgage which would otherwise be subject to the
foregoing restrictions in an aggregate amount which, together with all other
Debt of the Issuer and its Restricted Subsidiaries which (if originally issued,
assumed or guaranteed at such time) would otherwise be subject to the foregoing
restrictions (not including Debt permitted to be secured under clauses (i)
through (vii) above), does not at the time exceed 10% of Consolidated Net
Tangible Assets.
SECTION 3.7 Limitation on Sale and Lease-Back. So long as the Securities of
any series are outstanding, the Issuer will not, nor will it permit any
Restricted Subsidiary to, enter into any arrangement with any Person providing
for the leasing by the Issuer or any Restricted Subsidiary of any Principal
Property owned by the Issuer or any Restricted Subsidiary whether such Principal
Property is now owned or hereafter acquired (except for temporary leases for a
term of not more than three years and except for leases between the Issuer and a
Restricted Subsidiary or between Restricted Subsidiaries), which property has
been or is to be sold or transferred by the Issuer or such Restricted Subsidiary
to such Person, unless
(a) the Issuer or such Restricted Subsidiary would be entitled,
pursuant to the provisions of Section 3.6, to issue, assume or guarantee
Debt secured by a mortgage upon such property at least equal in amount to
the Attributable Debt in respect of such arrangement without equally and
ratably securing the Securities; provided, however, that from and after the
date on which such arrangement becomes effective the Attributable Debt in
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respect of such arrangement shall be deemed for all purposes under Sections
3.6 and 3.7 to be Debt subject to the provisions of Section 3.6; or
(b) the Issuer shall apply an amount in cash equal to the Attributable
Debt in respect of such arrangement to the retirement (other than any
mandatory retirement or by way of payment at maturity), within 90 days of
the effective date of any such arrangement, of Debt (except as otherwise
provided by the terms of any series of Securities issued hereunder) of the
Issuer or any Restricted Subsidiary (other than Debt owned by the Issuer or
any Restricted Subsidiary) which by its terms matures at or is extendible
or renewable at the option of the obligor to a date more than twelve months
after the date of the creation of such Debt.
The term "Attributable Debt" shall mean, at the time of determination, the
present value (discounted at the interest rate, compounded semiannually, equal
to the weighted average Yield to Maturity of the Outstanding Securities, such
average being weighted by the principal amount of the Securities of each series
or, in the case of Original Issue Discount Securities, such amount to be
determined as provided in the definition of "Outstanding") of the obligation of
a lessee for net rental payments during the remaining term of any lease entered
into in connection with a transaction contemplated by this Section 3.7
(including any period for which such lease has been extended).
ARTICLE FOUR
SECURITYHOLDERS' LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Issuer covenants and agrees that it will
furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the holders of the
Securities of each series:
(a) semiannually and not more than 15 days after each record date for the
payment of interest on such Securities, as hereinabove specified, as of such
record date and on dates to be determined pursuant to Section 2.3 for
non-interest bearing securities in each year, and
(b) at such other times as the Trustee may request in writing, within 30
days after receipt by the Issuer of any such request as of a date not more than
15 days prior to the time such information is furnished,
provided that if and so long as the Trustee shall be the Security registrar
for such series, such list shall not be required to be furnished.
SECTION 4.2 Preservation and Disclosure of Securityholders' Lists. (a) The
Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the holders of each series of
Securities contained in the most recent list furnished to it as provided in
Section 4.1 or maintained by the Trustee in its capacity as Security registrar
for such series, if so acting. The Trustee may destroy any list furnished to it
as provided in Section 4.1 upon receipt of a new list so furnished.
(b) The rights of Holders of Securities of any series to communicate with
other Holders of Securities of such series with respect to their rights under
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this Indenture or under the Securities, and the corresponding rights and duties
of the Trustee, shall be as provided by the Trust Indenture Act.
(c) Each and every holder of Securities, by receiving and holding the same,
agrees with the Issuer and the Trustee that neither the Issuer nor the Trustee
nor any agent of the Issuer or the Trustee shall be held accountable by reason
of the disclosure of any such information as to the names and addresses of the
holders of Securities made pursuant to the Trust Indenture Act.
SECTION 4.3 Reports by the Issuer. The Issuer 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 the
Trust Indenture 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 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 4.4 Reports by the Trustee. (a) The Trustee shall transmit to
Holders and other persons such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act on
or before July 15 in each year that such report is required, such reports to be
dated as of the immediately preceding May 15.
(b) A copy of each such report shall, at the time of such transmission to
Securityholders, be furnished to the Issuer and be filed by the Trustee with
each stock exchange upon which the Securities of any applicable series are
listed and also with the Commission. The Issuer agrees to notify the Trustee
with respect any series when and as the Securities of such series become
admitted to trading on any national securities exchange.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of Maturity; Waiver
of Default. "Event of Default" with respect to Securities of any series,
wherever used herein, means each one of the following events which shall have
occurred and be continuing (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):
(a) default in the payment of any installment of interest upon any of the
Securities of such series as and when the same shall become due and payable, and
continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal of any of
the Securities of such series as and when the same shall become due and payable
either at maturity, upon redemption, by declaration or otherwise; or
(c) default in the payment of all or any part of any sinking fund
installment or other similar obligation as and when the same shall become due
and payable by the terms of the Securities of such series; or
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(d) default in the performance, or breach, of any covenant or warranty of
the Issuer in respect of the Securities of such series (other than a covenant or
warranty in respect of the Securities of such series 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 Issuer by the
Trustee or to the Issuer and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of all series affected thereby, 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, if there is
a judicial or administrative proceeding pending at any time during the
above-referenced 90 day period in which one of the disputed issues relates to
whether or not there was a default or breach, for a period of 90 days after the
final resolution of whether or not there was a default or breach; or
(e) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Issuer in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Issuer or for any substantial part of
its property or ordering the winding up or liquidation of its affairs, and such
decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or
(f) the Issuer shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consent to the entry of an order for relief in an involuntary case under any
such law, or consent to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee or sequestrator (or similar official)
of the Issuer or for any substantial part of its property, or make any general
assignment for the benefit of creditors, or
(g) any other Event of Default provided in the supplemental indenture or
resolution of the Board of Directors under which such series of Securities is
issued or in the form of Security for such series.
If an Event of Default described in clauses (a), (b), (c) or (d) above (if
the Event of Default under clause (d) is with respect to less than all series of
Securities then Outstanding) occurs and is continuing, then, and in each and
every such case, unless the principal of all of the Securities of such series
shall have already become due and payable, either the Trustee or the holders of
not less than 25% in aggregate principal amount of the Securities of such series
then outstanding hereunder (each such series voting as a separate class) by
notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the Securities of
such series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series) of all
Securities of such series and the interest accrued thereon, if any, to be due
and payable immediately, and upon any such declaration the same shall become
immediately due and payable. If an Event of Default described in clause (d) (if
the Event of Default under clause (d) is with respect to all series of
Securities then Outstanding), (e) or (f) occurs and is continuing, then and in
each and every such case, unless the principal of all the Securities shall have
already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of all the Securities then Outstanding
hereunder (treated as one class), by notice in writing to the Issuer (and to the
Trustee if given by Securityholders), may declare the entire principal (or, if
any Securities are Original Issue Discount Securities, such portion of the
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principal as may be specified in the terms thereof) of all the Securities then
outstanding and interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately due
and payable.
The foregoing provisions, however, are subject to the condition that if, at
any time after the principal (or, if the Securities are Original Issue Discount
Securities, such portion of the principal as may be specified in the terms
thereof) of the Securities of any series (or of all the Securities, as the case
may be) shall have been so declared due and payable, and before any judgment or
decree for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Issuer shall pay or shall deposit with the Trustee a
sum sufficient to pay all matured installments of interest upon all the
Securities of such series (or of all the Securities, as the case may be) and the
principal of any and all Securities of such series (or of all the Securities, as
the case may be) which shall have become due otherwise than by acceleration
(with interest upon such principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of
interest, at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of such
series (or at the respective rates of interest or Yields to Maturity of all the
Securities, as the case may be) to the date of such payment or deposit) and such
amount as shall be sufficient to cover reasonable compensation to the Trustee,
its agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee except as a result of negligence
or bad faith, and if any and all Events of Default under the Indenture, other
than the non-payment of the principal of Securities which shall have become due
by acceleration, shall have been cured, waived or otherwise remedied as provided
herein--then and in every such case the holders of a majority in aggregate
principal amount of all the Securities of such series, each series voting as a
separate class (or of all the Securities, as the case may be, voting as a single
class) then Outstanding, by written notice to the Issuer and to the Trustee, may
waive all defaults with respect to such series (or with respect to all the
Securities, as the case may be) and rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or shall impair any right consequent
thereon.
For all purposes under this Indenture, if a portion of the principal of any
Original Issue Discount Securities shall have been accelerated and declared due
and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 5.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt.
The Issuer covenants that (a) in case default shall be made in the payment of
any installment of interest on any of the securities of any series when such
interest shall have become due and payable, and such default shall have
continued for a period of 30 days or (b) in case default shall be made in the
payment of all or any part of the principal of any of the Securities of any
series when the same shall have become due and payable, whether upon maturity of
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the Securities of such series or upon any redemption or by declaration or
otherwise--then, upon demand of the Trustee, the Issuer will pay to the Trustee
for the benefit of the Holders of the Securities of such series the whole amount
that then shall have become due and payable on all Securities of such series for
principal or interest, as the case may be (with interest to the date of such
payment upon the overdue principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of such
series); and in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including reasonable compensation to
the Trustee and each predecessor Trustee, their respective agents, attorneys and
counsel, and any expenses and liabilities incurred, and all advances made, by
the Trustee and each predecessor Trustee except as a result of its negligence or
bad faith.
Until such demand is made by the Trustee, the Issuer may pay the principal
of and interest on the Securities of any series to the registered holders,
whether or not the principal of and interest on the Securities of such series be
overdue.
In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or other obligor upon such
Securities and collect in the manner provided by law out of the property of the
Issuer or other obligor upon such Securities, wherever situated, the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer or any
other obligor upon the Securities under Title 11 of the United States Code or
any other applicable Federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor, or in case
of any other comparable judicial proceedings relative to the Issuer or other
obligor upon the Securities of any series, or to the creditors or property of
the Issuer or such other obligor, the Trustee, irrespective of whether the
principal of any Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of principal
and interest (or, if the Securities of any series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) owing and unpaid in respect of the Securities of any
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
reasonable compensation to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all expenses
and liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee, except as a result of negligence or bad faith) and of the
Securityholders allowed in any judicial proceedings relative to the Issuer or
other obligor upon the Securities of any series, or to the creditors or property
of the Issuer or such other obligor,
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(b) unless prohibited by applicable law and regulations, to vote on behalf
of the holders of the Securities of any series in any election of a trustee or a
standby trustee in arrangement, reorganization, liquidation or other bankruptcy
or insolvency proceedings or person performing similar functions in comparable
proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their behalf;
and any trustee, receiver, or liquidator, custodian or other similar official is
hereby authorized by each of the Securityholders to make payments to the
Trustee, and, in the event that the Trustee shall consent to the making of
payments directly to the Securityholders, to pay to the Trustee such amounts as
shall be sufficient to cover reasonable compensation to the Trustee, each
predecessor Trustee and their respective agents, attorneys and counsel, and all
other expenses and liabilities incurred, and all advances made, by the Trustee
and each predecessor Trustee except as a result of negligence or bad faith and
all other amounts due to the Trustee or any predecessor Trustee pursuant to
Section 6.6.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan or reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture, or under
any of the Securities, may be enforced by the Trustee without the possession of
any of the Securities or the production thereof on any trial or other
proceedings relative thereto, and any such action or proceedings instituted by
the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment, subject to the payment of the expenses, disbursements
and compensation of the Trustee, each predecessor Trustee and their respective
agents and attorneys, shall be for the ratable benefit of the holders of the
Securities in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the holders
of the Securities in respect to which such action was taken, and it shall not be
necessary to make any holders of such Securities parties to any such
proceedings.
SECTION 5.3 Application of Proceeds. Any moneys collected by the Trustee
pursuant to this Article in respect of any series shall be applied in the
following order at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal or interest, upon
presentation of the several Securities in respect of which monies have been
collected and stamping (or otherwise noting) thereon the payment, or issuing
Securities of such series in reduced principal amounts in exchange for the
presented Securities of like series if only partially paid, or upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such series in
respect of which monies have been collected, including reasonable compensation
to the Trustee and each predecessor Trustee and their respective agents and
attorneys and of all expenses and liabilities incurred, and all advances made,
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by the Trustee and each predecessor Trustee except as a result of negligence or
bad faith, and all other amounts due to the Trustee or any predecessor Trustee
pursuant to Section 6.6;
SECOND: In case the principal of the Securities of such series in respect
of which moneys have been collected shall not have become and be then due and
payable, to the payment of interest on the Securities of such series in default
in the order of the maturity of the installments of such interest, with interest
(to the extent that such interest has been collected by the Trustee) upon the
overdue installments of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) specified
in such Securities, such payments to be made ratably to the persons entitled
thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series in respect of
which moneys have been collected shall have become and shall be then due and
payable, to the payment of the whole amount then owing and unpaid upon all the
Securities of such series for principal and interest, with interest upon the
overdue principal, and (to the extent that such interest has been collected by
the Trustee) upon overdue installments of interest at the same rate as the rate
of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series; and in case such moneys
shall be insufficient to pay in full the whole amount so due and unpaid upon the
Securities of such series, then to the payment of such principal and interest or
Yield to Maturity, without preference or priority of principal over interest or
Yield to Maturity, or of interest or Yield to Maturity over principal, or of any
installment of interest over any other installment of interest, or of any
Security of such series over any other Security of such series, ratably to the
aggregate of such principal and accrued and unpaid interest or Yield to
Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer or any
other person lawfully entitled thereto.
SECTION 5.4 Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 5.5 Restoration of Rights on Abandonment of Proceedings. In case
the Trustee shall have proceeded to enforce any right under this Indenture and
such proceedings shall have been discontinued or abandoned for any reason, or
shall have been determined adversely to the Trustee, then and in every such case
the Issuer and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Issuer, the Trustee and the Securityholders shall continue as though no such
proceedings had been taken.
SECTION 5.6 Limitations on Suits by Securityholders. No holder of any
Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a trustee, receiver, liquidator, custodian
or other similar official or for any other remedy hereunder, unless such holder
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previously shall have given to the Trustee written notice of default and of the
continuance thereof, as hereinbefore provided, and unless also the holders of
not less than 25% in aggregate principal amount of the Securities of such series
then outstanding shall have made written request upon the Trustee to institute
such action or proceedings in its own name as trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby and the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action or proceeding and no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 5.9; it being understood and intended, and being
expressly covenanted by the taker and Holder of every Security with every other
taker and Holder and the Trustee, that no one or more Holders of Securities of
any series shall have any right in any manner whatever by virtue or by availing
of any provision of this Indenture to affect, disturb or prejudice the rights of
any other such Holder of Securities, or to obtain or seek to obtain priority
over or preference to any other such Holder or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of the applicable series. For the
protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
SECTION 5.7 Unconditional Right of Securityholders to Institute Certain
Suits. Notwithstanding any other provision in this Indenture and any provision
of any Security, the right of any Holder of any Security to receive payment of
the principal of and interest on such Security on or after the respective due
dates expressed in such Security, or to institute suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 5.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver of
Default. Except as provided in Section 5.6, no right or remedy herein conferred
upon or reserved to the Trustee or to the Securityholders 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.
No delay or omission of the Trustee or of any Securityholder to exercise
any right or power accruing upon any Event of Default occurring and continuing
as aforesaid shall impair any such right or power or shall be construed to be a
waiver of any such Event of Default or an acquiescence therein; and, subject to
Section 5.6, every power and remedy given by this Indenture or by law to the
Trustee or to the Securityholders may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee or by the Securityholders.
SECTION 5.9 Control by Securityholders. The Holders of a majority in
aggregate principal amount of the Securities of each series affected (with each
series voting as a separate class) at the time Outstanding 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 by this Indenture;
provided that such direction shall not be otherwise than in accordance with law
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and the provisions of this Indenture and provided further that (subject to the
provisions of Section 6.1) the Trustee shall have the right to decline to follow
any such direction if the Trustee, being advised by counsel, shall determine
that the action or proceeding so directed may not lawfully be taken or if the
Trustee in good faith by its board of directors, the executive committee, or a
trust committee of directors or Responsible Officers of the Trustee shall
determine that the action or proceedings so directed would involve the Trustee
in personal liability or if the Trustee in good faith shall so determine that
the actions or forebearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders of the Securities of all series
so affected not joining in the giving of said direction, it being understood
that (subject to Section 6.1) the Trustee shall have no duty to ascertain
whether or not such actions or forebearances are unduly prejudicial to such
Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
SECTION 5.10 Waiver of Past Defaults. Prior to the declaration of the
acceleration of the maturity of the Securities of any series as provided in
Section 5.1, the Holders of a majority in aggregate principal amount of the
Securities of such series at the time Outstanding may on behalf of the Holders
of all the Securities of such series waive any past default or Event of Default
described in clause (c) of Section 5.1 (or, in the case of an event specified in
clause (d) of Section 5.1 which relates to less than all series of Securities
then Outstanding, the Holders of a majority in aggregate principal amount of the
Securities then outstanding affected thereby (each series voting as a separate
class) may waive any such default or Event of Default, or, in the case of an
event specified in clause (d) (if the Event of Default under clause (d) relates
to all series of Securities then Outstanding), (e) or (f) of Section 5.1 the
Holders of Securities of a majority in principal amount of all the Securities
then Outstanding (voting as one class) may waive any such default or Event of
Default), and its consequences except a default in respect of a covenant or
provision hereof which cannot be modified or amended without the consent of the
Holder of each Security affected.
Upon any such waiver, such default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture, and the Issuer, the Trustee and the Holders of the
Securities of such series shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 5.11 Trustee to Give Notice of Default, But May Withhold in Certain
Circumstances. The Trustee shall transmit to the Securityholders of any series,
as the names and addresses of such Holders appear on the registry books, notice
by mail of all defaults which have occurred with respect to such series, such
notice to be transmitted within 90 days after the occurrence thereof, unless
such defaults shall have been cured before the giving of such notice (the term
"default" or "defaults" for the purposes of this Section being hereby defined to
mean any event or condition which is, or with notice or lapse of time or both
would become, an Event of Default); provided that, except in the case of default
in the payment of the principal of, interest on, or any sinking fund installment
or other similar obligation with respect to, any of the Securities of such
series, the Trustee shall be protected in withholding such notice if and so long
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as the board of directors, the executive committee, or a trust committee of
directors or trustees and/or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interests of the
Securityholders of such series.
SECTION 5.12 Right of Court to Require Filing of Undertaking to Pay Costs.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken, suffered
or omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities of
all series (or, if the matter in issue does not relate to all series of
Securities, then the Holders of 10% in principal amount of the Outstanding
Securities of all series to which such issue relates), treated as a single
class, or to any suit instituted by any Securityholder for the enforcement of
the payment of the principal of or interest on any Security on or after the due
date expressed in such Security.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During Default;
Prior to Default. With respect to the Holders of any series of Securities issued
hereunder, the Trustee, prior to the occurrence of an Event of Default with
respect to the Securities of a particular series and after the curing or waiving
of all Events of Default which may have occurred with respect to such series,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default with respect to the
Securities of a series has occurred (which has not been cured or waived) the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
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
(a) prior to the occurrence of an Event of Default with respect to the
Securities of any series and after the curing or waiving of all such Events of
Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect to the
Securities of any Series shall be determined solely by the express provisions of
this Indenture, and the Trustee shall not be liable except for the performance
of such duties and obligations as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any statements, certificates
or opinions furnished to the Trustee and conforming to the requirements of this
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Indenture; but in the case of any such statements, certificates or opinions
which by any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer or Responsible Officers of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(c) 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 pursuant to Section 5.9 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.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
The provisions of this Section 6.1 are in furtherance of and subject to
Sections 315 and 316 of the Trust Indenture Act.
SECTION 6.2 Certain Rights of the Trustee. In furtherance of and subject to
the Trust Indenture Act and subject to Section 6.1:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, Officers' Certificate or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order, bond,
debenture, note, coupon, security 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, direction, order or demand of the Issuer mentioned herein
shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the secretary or an assistant secretary of the Issuer;
(c) the Trustee may consult with counsel of its selection and any advice or
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by it hereunder in
good faith and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the trusts
or powers vested in it by this Indenture with the request, order or direction of
any of the Securityholders pursuant to the provisions of this Indenture, unless
such Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred
therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by it
in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Indenture;
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(f) prior to the occurrence of an Event of Default hereunder and after the
curing or waiving of all Events of Default, the Trustee shall not be bound to
make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, appraisal, bond, debenture, note, coupon, security, or other
paper or document unless requested in writing so to do by the holders of not
less than a majority in aggregate principal amount of the Securities of all
series affected then outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Indenture, the Trustee may require reasonable indemnity
against such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such investigation shall be paid by the Issuer or,
if paid by the Trustee or any predecessor trustee, shall be repaid by the Issuer
upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder.
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of Securities
or Application of Proceeds Thereof. The recitals contained herein and in the
Securities, except the Trustee's certificates of authentication, shall be taken
as the statements of the Issuer, and the Trustee assumes no responsibility for
the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of his Indenture or of the Securities. The Trustee shall
not be accountable for the use or application by the Issuer of any of the
Securities or of the proceeds thereof.
SECTION 6.4 Trustee and Agents May Hold Securities; Collections, etc. The
Trustee or any agent of the Issuer or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not the Trustee or such agent and, subject to
Sections 6.8 and 6.13, if operative, may otherwise deal with the Issuer and
receive, collect, hold and retain collections from the Issuer with the same
rights it would have if it were not the Trustee or such agent.
SECTION 6.5 Moneys Held by Trustee. Subject to the provisions of Section
10.4 hereof, all moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by
mandatory provisions of law. Neither the Trustee nor any agent of the Issuer or
the Trustee shall be under any liability for interest on any moneys received by
it hereunder.
SECTION 6.6 Compensation and Indemnification of Trustee and Its Prior
Claim. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, such compensation (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust) to be agreed to in writing by the Trustee and the Issuer, and the
Issuer covenants and agrees to pay or reimburse the Trustee and each predecessor
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by or on behalf of it in accordance with any of the provisions
of this Indenture (including (i) the reasonable compensation and the expenses
and disbursements of its counsel and of all agents and other persons not
regularly in its employ and (ii) interest at the prime rate on any disbursements
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and advances made by the Trustee and not paid by the Issuer within 60 days after
receipt of an invoice for such disbursement or advance) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Issuer also covenants to indemnify the Trustee and each predecessor 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 Indenture or the trusts hereunder and its
duties hereunder, including the costs and expenses of defending itself against
or investigating any claim of liability in the premises. The obligations of the
Issuer under this Section to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each predecessor
Trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture. Such additional indebtedness shall be a senior claim to that of the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the holders of particular
Securities, and the Securities are hereby subordinated to such senior claim. The
provisions of this Section shall survive the termination of this Indenture.
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate, etc. Subject
to Sections 6.1 and 6.2, whenever in the administration of the trusts of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 6.8 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.
SECTION 6.9 Persons Eligible for Appointment as Trustee. The Trustee for
each series of Securities hereunder shall at all times be a corporation having a
combined capital and surplus of at least $50,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, the
Trustee shall resign immediately in the manner and with the effect specified in
Section 6.10.
SECTION 6.10 Resignation and Removal; Appointment of Successor Trustee. (a)
The Trustee, or any trustee or trustees hereafter appointed, may at any time
resign with respect to one or more or all series of Securities by giving written
notice of resignation to the Issuer and by mailing notice thereof by first class
mail to Holders of the applicable series of Securities at their last addresses
as they shall appear on the Security register. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor trustee or trustees
with respect to the applicable series by written instrument in duplicate,
executed by authority of the Board of Directors, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the successor
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trustee or trustees. If no successor trustee shall have been so appointed with
respect to any series and have accepted appointment within 30 days after the
mailing of such notice of resignation, the resigning trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee, or
any Securityholder who has been a bona fide Holder of a Security or Securities
of the applicable series for at least six months may, subject to the provisions
of Section 5.12, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section 6.8
with respect to any series of Securities after written request therefor by the
Issuer or by any Securityholder who has been a bona fide Holder of a Security or
Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 6.9 and shall fail to resign after written request
therefor by the Issuer or by any Securityholder; or
(iii) 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 or liquidator 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; or
(iv) the Issuer shall determine that the Trustee has failed to perform
its obligations under this Indenture in any material respect;
then, in any such case, the Issuer may remove the Trustee with respect to
the applicable series of Securities and appoint a successor trustee for such
series by written instrument, in duplicate, executed by order of the Board of
Directors of the Issuer, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or, subject to the
provisions of Section 5.12, any Securityholder who has been a bona fide Holder
of a Security or Securities 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. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee. If no successor trustee shall have been appointed
with respect to any series and have accepted appointment within 30 days after a
notice of removal has been given, the removed trustee may petition a court of
competent jurisdiction for the appointment of a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series at the time outstanding may at any time remove the
Trustee with respect to Securities of such series and appoint a successor
trustee with respect to the Securities of such series by delivering to the
Trustee so removed, to the successor trustee so appointed and to the Issuer the
evidence provided for in Section 7.1 of the action in that regard taken by the
Securityholders.
(d) Any resignation or removal of the Trustee with respect to any series
and any appointment of a successor trustee with respect to such series pursuant
to any of the provisions of this Section 6.10 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 6.11.
SECTION 6.11 Acceptance of Appointment by Successor Trustee. Any successor
trustee appointed as provided in Section 6.10 shall execute and deliver to the
Issuer and to its predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor trustee
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with respect to all or any applicable series shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become
vested with all rights, powers, duties and obligations with respect to such
series of its predecessor hereunder, with like effect as if originally named as
trustee for such series hereunder; but, nevertheless, on the written request of
the Issuer or of the successor trustee, upon payment of its charges then unpaid,
the trustee ceasing to act shall, subject to Section 10.4, pay over to the
successor trustee all moneys at the time held by it hereunder and shall execute
and deliver an instrument transferring to such successor trustee all such
rights, powers, duties and obligations. Upon request of any such successor
trustee, the Issuer shall execute any and all instruments in writing for more
fully and certainly vesting in and confirming to such successor trustee all such
rights and powers. Any trustee ceasing to act shall, nevertheless, retain a
prior claim upon all property or funds held or collected by such trustee to
secure any amounts then due it pursuant to the provisions of Section 6.6.
If a successor trustee is appointed with respect to the Securities of one
or more (but not all) series, the Issuer, the predecessor 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 predecessor trustee with respect to the
Securities of any series as to which the predecessor trustee is not retiring
shall continue to be vested in the predecessor 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 under separate
indentures.
No successor trustee with respect to any series of Securities shall accept
appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor trustee shall be qualified under the provisions of
Section 6.8 and eligible under the provisions of Section 6.9.
Upon acceptance of appointment by any successor trustee as provided in this
Section 6.11, the Issuer shall mail notice thereof by first class mail to the
Holders of Securities of any series for which such successor trustee is acting
as trustee at their last addresses as they shall appear in the Security
register. If the acceptance of appointment is substantially contemporaneous with
the resignation, then the notice called for by the preceding sentence may be
combined with the notice called for by Section 6.10. If the Issuer fails to mail
such notice within ten days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of the Issuer.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business of
Trustee. 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 that such corporation shall be qualified under the provisions of
Section 6.8 and eligible under the provisions of Section 6.9, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
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In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have; provided, that the right to adopt the certificate of authentication
of any predecessor Trustee or to authenticate Securities of any series in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
SECTION 6.13 Preferential Collection of Claims Against the Issuer. The
Trustee shall comply with the provisions of Section 311 of the Trust Indenture
Act.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such specified percentage of Securityholders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee. Proof of execution of any instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and
(subject to Sections 6.1 and 6.2) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article.
If the Issuer shall solicit from the Securityholders any request, demand,
authorization, direction, notice, consent, waiver or other act of the
Securityholders, the Issuer may, at its option, by a resolution of the Board of
Directors, fix in advance a record date for the determination of Securityholders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other act, but the Issuer shall have no obligation to do so.
If such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other act may be given before or after such record
date, but only the Securityholders of record at the close of business on such
record date shall be deemed to be Securityholders for the purposes of
determining whether Securityholders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Securityholders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the
record date.
If any Security of a series is issuable in the form of a Global Security or
Securities, the Depositary therefor may grant proxies and otherwise authorize
participants to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action which the Holder of such Security is
entitled to grant or take under this Indenture.
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SECTION 7.2 Proof of Execution of Instruments and of Holding of Securities.
Subject to Sections 6.1 and 6.2, the execution of any instrument by a
Securityholder or his agent or proxy may be proved in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee or in such
manner as shall be satisfactory to the Trustee. The holding of Securities shall
be proved by the Security register or by a certificate of the registrar thereof.
SECTION 7.3 Holders to be Treated as Owners. The Issuer, the Trustee and
any agent of the Issuer or the Trustee may deem and treat the Person in whose
name any Security shall be registered upon the Security register for such series
as the absolute owner of such Security (whether or not such Security shall be
overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the principal of and,
subject to the provisions of this Indenture, interest on such Security and for
all other purposes; and neither the Issuer nor the Trustee nor any agent of the
Issuer or the Trustee shall be affected by any notice to the contrary. All such
payments so made to any such Person, or upon his order, shall be valid, and, to
the extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Security.
None of the Issuer, the Trustee any paying agent, or the Security Registrar
will 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.
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the Issuer
or any other obligor on the Securities with respect to which such determination
is being made or by any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer or any other
obligor on the Securities with respect to which such determination is being made
shall be disregarded and deemed not to be Outstanding for the purpose of any
such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver
only Securities which the Trustee knows are so owned shall be so disregarded.
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 Issuer or any other obligor upon the Securities or any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer or any other obligor on the Securities. In case
of a dispute as to such right, the advice of counsel shall be full protection in
respect of any decision made by the Trustee in accordance with such advice. Upon
request of the Trustee, the Issuer shall furnish to the Trustee promptly an
Officers' Certificate listing and identifying all Securities, if any, known by
the Issuer to be owned or held by or for the account of any of the
above-described Persons; and, subject to Sections 6.1 and 6.2, the Trustee shall
be entitled to accept such Officers' Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Securities not listed therein
are Outstanding for the purpose of any such determination.
SECTION 7.5 Right of Revocation of Action Taken. At any time prior to (but
not after) the evidencing to the Trustee, as provided in Section 7.1, of the
taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
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this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Security. Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities of any or all series,
as the case may be, specified in this Indenture in connection with such action
shall be conclusively binding upon the Issuer, the Trustee and the Holders of
all the Securities affected by such action.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders.
The Issuer, when authorized by a resolution of its Board of Directors, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as in force at the date of the execution thereof) for one or
more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or assets;
(b) to evidence the succession of another corporation to the Issuer, or
successive successions, and the assumption by the successor corporation of the
covenants, agreements and obligations of the Issuer pursuant to Article Nine;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as its Board of Directors and the Trustee
shall consider to be for the protection of the Holders of Securities, and to
make the occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions, conditions or provisions an Event of Default
permitting the enforcement of all or any of the several remedies provided in
this Indenture as herein set forth; provided, that in respect of any such
additional covenant, restriction, condition or provision such supplemental
indenture may provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of other defaults)
or may provide for an immediate enforcement upon such an Event of Default or may
limit the remedies available to the Trustee upon such an Event of Default or may
limit the right of the Holders of a majority in aggregate principal amount of
the Securities of such series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture; or to make such other provisions in regard to matters or questions
arising under this Indenture or under any supplemental indenture as the Board of
Directors may deem necessary or desirable and which shall not adversely affect
the interests of the Holders of the Securities;
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(e) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 2.3, including, without limitation, any terms
relating to the issuance, exchange, registration or transfer of Securities
issued in whole or in part in the form of one or more global Securities and the
payment of any principal thereof, or interest or premium, if any, thereon; and
(f) to evidence and provide for the acceptance of appointment hereunder
by a successor trustee with respect to the Securities of one or more series and
to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of Section
6.11.
The Trustee is hereby authorized to join with the Issuer in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section may
be executed without the consent of the Holders of any of the Securities at the
time outstanding, notwithstanding any of the provisions of Section 8.2.
SECTION 8.2 Supplemental Indentures With Consent of Securityholders. With
the consent (evidenced as provided in Article Seven) of the Holders of not less
than a majority in aggregate principal amount of the Securities at the time
outstanding of all series affected by such supplemental indenture (voting as one
class), the Issuer, when authorized by a resolution of its Board of Directors,
and the Trustee may, from time to time and at any time, enter into an indenture
or indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as in force at the date of execution thereof) for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities of each such
series; provided, that no such supplemental indenture shall (a) extend the final
maturity of any Security, or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of interest thereon, or reduce any amount
payable on redemption thereof or reduce the amount of the principal of an
Original Issue Discount Security that could be due and payable upon an
acceleration of the maturity thereof pursuant to Section 5.1 or the amount
thereof provable in bankruptcy pursuant to Section 5.2, or impair or affect the
right of any Securityholder to institute suit for the payment thereof or, if the
Securities provide therefor, any right of repayment at the option of the
Securityholder without the consent of the Holder of each Security so affected,
or (b) reduce the aforesaid percentage of Securities of any series, the consent
of the Holders of which is required for any such supplemental indenture, without
the consent of the Holders of each Security so affected.
Upon the request of the Issuer, accompanied by a copy of a resolution of
the Board of Directors certified by the secretary or an assistant secretary of
the Issuer authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Securityholders
as aforesaid and other documents, if any, required by Section 7.1, the Trustee
shall join with the Issuer in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own rights, duties or
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immunities under this Indenture or otherwise, in which case the Trustee may in
its discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Securityholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Issuer
shall mail a notice thereof by first class mail to the Holders of Securities of
each series affected thereby at their addresses as they shall appear on the
registry books of the Issuer, setting forth in general terms the substance of
such supplemental indenture. Any failure of the Issuer to mail such notice, or
any defect therein, shall not, however, in any way impair or affect the validity
of any such supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer and the Holders of Securities of
each series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
SECTION 8.4 Documents to Be Given to Trustee. The Trustee, subject to the
provisions to Sections 6.1 and 6.2, may receive an Officers' Certificate and an
Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article 8 complies with the applicable provisions of
this Indenture.
SECTION 8.5 Notation on Securities in Respect of Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article may bear a
notation in form approved by the Trustee for such series as to any matter
provided for by such supplemental indenture. If the Issuer or the Trustee 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 modification of this
Indenture contained in any such supplemental indenture may be prepared and
executed by the Issuer, authenticated by the Trustee and delivered in exchange
for the Securities of such series then outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Issuer May Consolidate, etc., on Certain Terms. The Issuer
covenants that it will not merge or consolidate with any other corporation or
sell or convey all or substantially all of its assets to any Person, unless (i)
either the Issuer shall be the continuing corporation, or the successor
corporation or the Person which acquires by sale or conveyance substantially all
the assets of the Issuer (if other than the Issuer) shall be a corporation
organized under the laws of the United States of America or any State thereof
and shall expressly assume the due and punctual payment of the principal of and
interest on all the Securities, according to their tenor, and the due and
punctual performance and observance of all of the covenants and conditions of
this Indenture to be performed or observed by the Issuer, by supplemental
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indenture satisfactory to the Trustee, executed and delivered to the Trustee by
such corporation, and (ii) the Issuer or such successor corporation, as the case
may be, shall not, immediately after such merger or consolidation, or such sale
or conveyance, be in default in the performance of any such covenant or
condition.
SECTION 9.2 Successor Corporation Substituted. In case of any such
consolidation, merger, sale or conveyance, and following such an assumption by
the successor corporation, such successor corporation shall succeed to and be
substituted for the Issuer, with the same effect as if it had been named herein.
Such successor corporation may cause to be signed, and may issue either in its
own name or in the name of the Issuer prior to such succession any or all of the
Securities issuable hereunder which theretofore shall not have been signed by
the Issuer and delivered to the Trustee; and, upon the order of such successor
corporation instead of the Issuer and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Issuer to the Trustee for authentication, and
any Securities which such successor corporation thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All of the Securities so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Securities had been issued at
the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance such
changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance by way
of lease) the Issuer or any successor corporation which shall theretofore have
become such in the manner described in this Article shall be discharged from all
obligations and covenants under this Indenture and the Securities and may be
liquidated and dissolved.
SECTION 9.3 Opinion of Counsel to Trustee. The Trustee, subject to the
provisions of Sections 6.1 and 6.2, may receive an Opinion of Counsel, prepared
in accordance with Section 13.5, as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption, and
any such liquidation or dissolution, complies with the applicable provisions of
this Indenture.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture. If at any time
(a) the Issuer shall have paid or caused to be paid the principal of and
interest on all the Securities of any series outstanding hereunder (other than
Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.9) as and when the same shall have
become due and payable, or (b) the Issuer shall have delivered to the Trustee
for cancellation all Securities of any series theretofore authenticated (other
than any Securities of such series which shall have been destroyed, lost or
stolen and which shall have been replaced or paid as provided in Section 2.9) or
(c) (i) all the securities of such series not theretofore delivered to the
Trustee for cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and (ii) the Issuer shall have irrevocably
deposited or caused to be deposited with the Trustee as trust funds the entire
amount in cash (other than moneys repaid by the Trustee or any paying agent to
the Issuer in accordance with Section 10.4) sufficient to pay at maturity or
upon redemption all Securities of such series (other than any Securities of such
series which shall have been destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 2.9) not theretofore delivered to the
Trustee for cancellation, including principal and interest due or to become due
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to such date of maturity as the case may be, and if, in any such case, the
Issuer shall also pay or cause to be paid all other sums payable hereunder by
the Issuer with respect to Securities of such series, then this Indenture shall
cease to be of further effect with respect to Securities of such series (except
as to (i) rights of registration of transfer and exchange, and the Issuer's
right of optional redemption, (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities, (iii) rights of holders to receive
payments of principal thereof and interest thereon and remaining rights of the
holders to receive mandatory sinking fund payments, if any, (iv) the rights,
obligations and immunities of the Trustee hereunder and (v) the rights of the
Securityholders of such series as beneficiaries hereof with respect to the
property so deposited with the Trustee payable to all or any of them), and the
Trustee, on demand of the Issuer accompanied by an Officers' Certificate and an
Opinion of Counsel and at the cost and expense of the Issuer, shall execute
proper instruments acknowledging such satisfaction of and discharging this
Indenture with respect to such series; provided, that the rights of Holders of
the Securities to receive amounts in respect of principal of and interest on the
Securities held by them shall not be delayed longer than required by
then-applicable mandatory rules or policies of any securities exchange upon
which the Securities are listed. The Issuer agrees to reimburse the Trustee for
any costs or expenses thereafter reasonably and properly incurred and to
compensate the Trustee for any services thereafter reasonably and properly
rendered by the Trustee in connection with this Indenture or the Securities of
such series.
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.4, all moneys deposited with the Trustee
pursuant to Section 10.1, all money and U.S. Government Obligations deposited
with the Trustee pursuant to Section 12.4 and all money received by the Trustee
in respect of U.S. Government Obligations deposited with the Trustee pursuant to
Section 12.4 shall be held in trust and applied by it to the payment, either
directly or through any paying agent (including the Issuer acting as its own
paying agent), to the Holders of the particular Securities of such series for
the payment or redemption of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for principal and interest or
to make mandatory sinking fund payments or analogous payments as contemplated by
Section 12.4; but such money need not be segregated from other funds except to
the extent required by law.
SECTION 10.3 Repayment of Moneys Held by Paying Agent. In connection with
the satisfaction and discharge of this Indenture with respect to Securities of
any series, all moneys then held by any paying agent under the provisions of
this Indenture with respect to such series of Securities shall, upon demand of
the Issuer, be repaid to it or paid to the Trustee and thereupon such paying
agent shall be released from all further liability with respect to such moneys.
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SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed
for Three Years. Any moneys deposited with or paid to the Trustee or any paying
agent for the payment of the principal of or interest on any Security of any
series and not applied but remaining unclaimed for three years after the date
upon which such principal or interest shall have become due and payable, shall,
upon the written request of the Issuer and unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
law, be repaid to the Issuer by the Trustee for such series or such paying
agent, and the Holder of the Security of such series shall, unless otherwise
required by mandatory provisions of applicable escheat or abandoned or unclaimed
property laws, thereafter look only to the Issuer for any payment which such
Holder may be entitled to collect, and all liability of the Trustee or any
paying agent with respect to such moneys shall thereupon cease.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 11.1 Applicability of Article. The provisions of this Article shall
be applicable to the Securities of any series which are redeemable before their
maturity or to any sinking fund for the retirement of Securities of a series
except as otherwise specified as contemplated by Section 2.3 for Securities of
such series.
SECTION 11.2 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any series to be redeemed as a whole
or in part at the option of the Issuer shall be given by mailing notice of such
redemption by first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption to such Holders of
Securities of such series at their last addresses as they shall appear upon the
registry books. Any notice which is mailed in the manner herein provided shall
be conclusively presumed to have been duly given, whether or not the Holder
receives the notice. Failure to give notice by mail, or any defect in the
notice, to the Holder of any Security of a series designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the principal
amount of each Security of such series held by such Holder to be redeemed, the
date fixed for redemption, the redemption price, the place or places of payment,
that payment will be made upon presentation and surrender of such Securities,
that such redemption is pursuant to the mandatory or optional sinking fund, or
both, if such be the case, that interest accrued to the date fixed for
redemption will be paid as specified in such notice and that on and after said
date interest thereon or on the portions thereof to be redeemed will cease to
accrue. In case any Security of a series is to be redeemed in part only the
notice of redemption shall state the serial number of the Security and the
portion of the principal amount thereof to be redeemed and shall state that on
and after the date fixed for redemption, upon surrender of such Security, a new
Security or Securities of such series in principal amount equal to the
unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at the
option of the Issuer shall be given by the Issuer or, at the Issuer's request,
by the Trustee in the name and at the expense of the Issuer.
At least one Business Day prior to the redemption date specified in the
notice of redemption given as provided in this Section, the Issuer will deposit
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with the Trustee or with one or more paying agents (or, if the Issuer is acting
as its own paying agent, set aside, segregate and hold in trust as provided in
Section 3.4) an amount of money sufficient to redeem on the redemption date all
the Securities of such series so called for redemption at the appropriate
redemption price, together with accrued interest to the date fixed for
redemption. If less than all the outstanding Securities of a series are to be
redeemed, the Issuer will deliver to the Trustee at least 70 days (or shorter
period satisfactory to the Trustee) prior to the date fixed for redemption an
Officers' Certificate stating the aggregate principal amount of Securities to be
redeemed.
If less than all the Securities of a series are to be redeemed, the Trustee
shall select, in such manner as it shall deem appropriate and fair, Securities
of such series to be redeemed in whole or in part. Securities may be redeemed in
part in multiples equal to the minimum authorized denomination for Securities of
such series or any multiple thereof. The Trustee shall promptly notify the
Issuer in writing of the serial numbers of the Securities of such series
selected for redemption and, in the case of any Securities of such series
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 of any series shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 11.3 Payment of Securities Called for Redemption. If notice of
redemption had been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Issuer shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue and, except as provided in Sections 6.5 and 10.4, such Securities shall
cease from and after the date fixed for redemption to be entitled to any benefit
or security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On presentation
and surrender of such Securities at a place of payment specified in said notice,
said Securities or the specified portions thereof shall be paid and redeemed by
the Issuer at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that any semiannual payment
of interest becoming due on the date fixed for redemption shall be payable to
the Holders of such Securities registered as such on the relevant record date
subject to the terms and provisions of Section 2.7 hereof.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid or duly provided for,
bear interest from the date fixed for redemption at the rate of interest or
Yield to Maturity (in the case of an Original Issue Discount Security) borne by
the Security.
Upon presentation of any Security redeemed in part only, the Issuer shall
execute and the Trustee shall authenticate and deliver to or on the order of the
Holder thereof, at the expense of the Issuer, a new Security or Securities of
such series, of authorized denominations, in principal amount equal to the
unredeemed portion of the Security so presented.
SECTION 11.4 Exclusion of Certain Securities from Eligibility for Selection
for Redemption. Securities shall be excluded from eligibility for selection for
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redemption if they are identified by registration and certificate number in a
written statement signed by an authorized officer of the Issuer and delivered to
the Trustee at least 40 days (or shorter period satisfactory to the Trustee)
prior to the last date on which notice of redemption may be given as being owned
of record and beneficially by, and not pledged or hypothecated by either (a) the
Issuer or (b) an entity specifically identified in such written statement
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer.
SECTION 11.5 Mandatory and Optional Sinking Funds. The minimum amount of
any sinking fund payment provided for by the terms of Securities of any series
is herein referred to as a "mandatory sinking fund payment", and any payment in
excess of such minimum amount provided for by the terms of Securities of any
series is herein referred to as an "optional sinking fund payment". The date on
which a sinking fund payment is to be made is herein referred to as the "sinking
fund payment date".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant
to Section 2.10, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such series (not previously so credited) redeemed by the Issuer
through any optional redemption provision contained in the terms of such series.
Securities so delivered or credited shall be received or credited by the Trustee
at the sinking fund redemption price specified in such Securities.
On or before the sixtieth day (or shorter period satisfactory to the
Trustee) next preceding each sinking fund payment date for any series, the
Issuer will deliver to the Trustee a written statement (which need not contain
the statements required by Section 13.5) signed by an authorized officer of the
Issuer (a) specifying the portion of the mandatory sinking fund payment to be
satisfied by payment of cash and the portion to be satisfied by credit of
Securities of such series, (b) stating that none of the Securities of such
series has theretofore been so credited, (c) stating that no defaults in the
payment of interest or Events of Default with respect to such series have
occurred (which have not been waived or cured) and are continuing and (d)
stating whether or not the Issuer intends to exercise its right to make an
optional sinking fund payment with respect to such series and, if so, specifying
the amount of such optional sinking fund payment which the Issuer intends to pay
on or before the next succeeding sinking fund payment date. Any Securities of
such series to be credited and required to be delivered to the Trustee in order
for the Issuer to be entitled to credit therefor as aforesaid which have not
theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.10 to the Trustee with such written statement (or
reasonably promptly thereafter if acceptable to the Trustee). Such written
statement shall be irrevocable and upon its receipt by the Trustee the Issuer
shall become unconditionally obligated to make all the cash payments or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Issuer, on or before any such sixtieth day, to
deliver such written statement and Securities specified in this paragraph, if
any, shall not constitute a default but shall constitute, on and as of such
date, the irrevocable election of the Issuer (i) that the mandatory sinking fund
payment for such series due on the next succeeding sinking fund payment date
shall be paid entirely in cash without the option to deliver or credit
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Securities of such series in respect thereof and (ii) that the Issuer will make
no optional sinking fund payment with respect to such series as provided in this
Section.
If the sinking fund payment or payments (mandatory or optional or both) to
be made in cash on the next succeeding sinking fund payment date plus any unused
balance of any preceding sinking fund payments made in cash shall exceed $50,000
(or a lesser sum if the Issuer shall so request) with respect to the Securities
of any particular series, such cash shall be applied on the next succeeding
sinking fund payment date to the redemption of Securities of such series at the
sinking fund redemption price together with accrued interest to the date fixed
for redemption. If such amount shall be $50,000 or less and the Issuer makes no
such request then it shall be carried over until a sum in excess of $50,000 is
available. The Trustee shall select, in the manner provided in Section 11.2, for
redemption on such sinking fund payment date a sufficient principal amount of
Securities of such series to absorb said cash, as nearly as may be, and shall
(if requested in writing by the Issuer) inform the Issuer of the serial numbers
of the Securities of such series (or portions thereof) so selected. Securities
of any series which are (a) owned by the Issuer or an entity known by the
Trustee to be directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer, as shown by the Security
register, and not known to the Trustee to have been pledged or hypothecated by
the Issuer or any such entity or (b) identified in an Officers' Certificate
delivered to the Trustee at least 60 days prior to the sinking fund payment date
as being beneficially owned by, and not pledged or hypothecated by, the Issuer
or an entity directly or indirectly controlling or controlled by or under direct
or indirect common control with the Issuer shall be excluded from Securities of
such series eligible for selection for redemption. The Trustee, in the name and
at the expense of the Issuer (or the Issuer, if it shall so request the Trustee
in writing) shall cause notice of redemption of the Securities of such series to
be given in substantially the manner provided in Section 11.2 (and with the
effect provided in Section 11.3) for the redemption of Securities of such series
in part at the option of the Issuer. The amount of any sinking fund payments not
so applied or allocated to the redemption of Securities of such series shall be
added to the next cash sinking fund payment for such series and, together with
such payment, shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys held on the stated maturity date of the
Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the principal of, and
interest on, the Securities of such series at maturity.
At least one Business Day before each sinking fund payment date, the Issuer
shall pay to the Trustee in cash or shall otherwise provide for the payment of
all interest accrued to the date fixed for redemption on Securities to be
redeemed on such sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a
series with sinking fund moneys or mail any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Issuer a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such default or Event of Default shall
occur, and any moneys thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed to have been
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collected under Article Five and held for the payment of all such Securities. In
case such Event of Default shall have been waived as provided in Section 5.10 or
the default cured on or before the sixtieth day preceding the sinking fund
payment date in any year, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section to the
redemption of such Securities.
ARTICLE TWELVE
DEFEASANCE
SECTION 12.1. Applicability of Article: Issuer's Option to Effect
Defeasance. Except to the extent otherwise provided pursuant to Section 2.3 in
respect of either or both of (a) defeasance of the Securities of a series under
Section 12.2 or (b) covenant defeasance of the Securities of a series under
Section 12.3, then the provisions of such Section or Sections, as the case may
be, together with the other provisions of this Article Twelve, shall be
applicable to the Securities of such series, and the Issuer may at its option by
resolution of the Board of Directors, at any time, with respect to the
Securities of such series, elect to have either Section 12.2 (if applicable) or
Section 12.3 (if applicable) be applied to the Outstanding Securities of such
series upon compliance with the conditions set forth below in this Article
Twelve.
SECTION 12.2 Defeasance and Discharge. Upon the Issuer's exercise of the
above option applicable to this Section, the Issuer shall be deemed to have been
discharged from its obligations with respect to the Outstanding Securities of
such series on the date the conditions set forth below are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Issuer shall be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities of such series and to have satisfied
all its other obligations under such Securities and this Indenture insofar as
such Securities are concerned (and the Trustee, at the expense of the Issuer,
shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of Outstanding Securities of such series to
receive solely from the trust fund described in Section 12.4 and as more fully
set forth in such Section, payments in respect of the principal of and interest
on such Securities when such payments are due, (B) the Issuer's obligations with
respect to such Securities under Sections 2.8, 2.9, 2.11, 3.2 and 3.4, (C) the
rights, powers, trusts, duties, and immunities of the Trustee hereunder and (D)
this Article Twelve. Subject to compliance with this Article Twelve, the Issuer
may exercise its option under this Section 12.2 notwithstanding the prior
exercise of its options under Section 12.3 with respect to Securities of such
series.
SECTION 12.3 Covenant Defeasance. Upon the Issuer's exercise of the above
option applicable to this Section, the Issuer shall be released from its
obligations under Sections 3.6 and 3.7 (and under other covenants which may be
specified in respect of such Securities pursuant to Section 2.3(16)) with
respect to the Outstanding Securities of such series on and after the date the
conditions set forth below are satisfied (hereinafter, "covenant defeasance").
For this purpose, such covenant defeasance means that, with respect to the
Outstanding Securities of such series, the Issuer may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such Section, whether directly or indirectly by reason of any
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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 such Securities shall be unaffected thereby.
SECTION 12.4 Conditions to Defeasance. The following shall be the
conditions to application of either Section 12.2 or Section 12.3 to the
Outstanding Securities of such series:
(a) the Issuer shall irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee satisfying the requirements of Section 6.9
who shall agree to comply with the provisions of this Article Twelve 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 such Securities, (i) money in an amount, or (ii) U.S. Government
Obligations which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than one
day before the due date of any payment referred to in this subparagraph (a)
money in an amount, or (iii) a combination thereof, 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 other qualifying trustee) to pay
and discharge, (A) the principal of and each installment of principal of and
interest on the Outstanding Securities of such series on the date that such
principal or installment of principal or interest is due and payable and (B) any
mandatory sinking fund payments or analogous payments applicable to the
Outstanding Securities of such series on the day on which such payments are due
and payable in accordance with the terms of this Indenture and of such
Securities.
(b) No Event of Default or event with which notice or lapse of time or both
would become an Event of Default with respect to the Securities of such series
shall have occurred and be continuing on the date of such deposit or, at any
time during the period ending on the 91st day after the date of such deposit or,
if longer, ending on the day following the expiration of the longest preference
period applicable to the Issuer under any applicable bankruptcy, insolvency or
similar law in respect of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).
(c) Such defeasance or covenant defeasance shall not cause the Trustee for
the Securities of such series to have a conflicting interest as defined in
Section 6.8 and for purposes of the Trust Indenture Act with respect to any
securities of the Issuer.
(d) Such defeasance or covenant defeasance shall not result in a breach or
violation of, or constitute a default under, this Indenture or any other
agreement or instrument to which the Issuer is a party or by which it is bound.
(e) Such defeasance or covenant defeasance shall not cause any Securities
of such series then listed on any registered national securities exchange under
the Securities Exchange Act of 1934, as amended, to be delisted.
(f) In the case of an election under Section 12.2, the Issuer shall have
delivered to the Trustee an Opinion of Counsel stating that (x) the Issuer has
received from, or there has been published by, the Internal Revenue Service a
ruling, or (y) since the date of this Indenture there has been a change in the
applicable Federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of the Outstanding
Securities of such series will not recognize income, gain or loss for Federal
income tax purposes as a result of such defeasance and will be subject to
44
<PAGE>
Federal income tax on the same amounts, in the same manner and at the same time
as would have been the case if such defeasance had not occurred.
(g) In the case of an election under Section 12.3, the Issuer shall have
delivered to the Trustee an Opinion of Counsel to the effect that the Holders of
the Outstanding Securities of such series will not recognize income, gain or
loss for Federal income tax purposes as a result of such covenant defeasance and
will be subject to Federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such covenant defeasance
had not occurred.
(h) Such defeasance or covenant defeasance shall be effected in compliance
with any additional terms, conditions or limitations which may be imposed on the
Issuer in connection therewith pursuant to Section 2.3.
(i) The Issuer shall have delivered to the Trustee an Officers Certificate
and an Opinion of Counsel, each stating that all conditions precedent provided
for relating to either the defeasance under Section 12.2 or the covenant
defeasance under Section 12.3 (as the case may be) have been complied with.
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.1 Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such, or against any past, present or future stockholder,
officer or director, as such, of the Issuer or of any successor, either directly
or through the Issuer or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the Securities by the holders thereof and as
part of the consideration for the issue of the Securities.
SECTION 13.2 Provisions of Indenture for the Sole Benefit of Parties and
Securityholders. Nothing in this Indenture or in the Securities, expressed or
implied, shall give or be construed to give to any person, firm or corporation,
other than the parties hereto and their successors and the Holders of the
Securities, any legal or equitable right, remedy or claim under this Indenture
or under any covenant or provision herein contained, all such covenants and
provisions being for the sole benefit of the parties hereto and their successors
and of the Holders of the Securities.
SECTION 13.3 Successors and Assigns of Issuer Bound by Indenture. All the
covenants, stipulations, promises and agreements in this Indenture contained by
or in behalf of the Issuer shall bind its successors and assigns, whether so
expressed or not.
SECTION 13.4 Notices and Demands on Issuer, Trustee and Securityholders.
Any notice or demand which any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the Holders of Securities
to or on the Issuer may be given or served by being deposited postage prepaid,
first class mail (except as otherwise specifically provided herein) addressed
(until another address of the Issuer is filed by the Issuer with the Trustee) to
Emerson Electric Co., 8000 W. Florissant Ave., St. Louis, Missouri 63136
Attention: Secretary. Any notice, direction, request or demand by the Issuer or
45
<PAGE>
any Securityholder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made at the offices of
the Trustee, 101 Barclay Street, 21st Floor, New York, New York 10286 Attention:
Corporate Trust Administration Facsimile: (212) 815-5919.
Where this Indenture provides for notice to Holders, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first class postage prepaid, to each Holder entitled thereto, at his
last address as it appears in the Security register. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular mail
service, it shall be impracticable to mail notice to the Issuer and
Securityholders 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 shall be deemed to be a sufficient giving of such
notice.
SECTION 13.5 Officers' Certificates and Opinions of Counsel; Statements to
Be Contained Therein. Upon any application or demand by the Issuer to the
Trustee to take any action under any of the provisions of this Indenture, the
Issuer shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture shall include (a) a statement that the person making such
certificate or opinion has read such covenant or condition, (b) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based, (c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion of
or representations by counsel, unless such officer knows that the certificate or
opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, information with respect to which is in the possession of
the Issuer, upon the certificate, statement or opinion of or representations by
an officer of officers of the Issuer, unless such counsel knows that the
46
<PAGE>
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants
filed with the Trustee shall contain a statement that such firm is independent.
SECTION 13.6 Payments Due on Saturdays, Sundays and Holidays. If the date
of maturity of interest on or principal of the Securities of any series or the
date fixed for redemption or repayment of any such Security shall not be a
Business Day, then payment of interest or principal 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 date of maturity or the date fixed for redemption,
and no interest shall accrue for the period after such date.
SECTION 13.7 Conflict of Any Provision of Indenture with Trust Indenture
Act. If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture without such limitation, qualification or conflict, the
latter provision shall control. If any provision of this Indenture modifies or
excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or excluded, as the case may be.
SECTION 13.8 New York Law to Govern. This Indenture and each Security shall
be deemed to be a contract under the laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of such State, except as
may otherwise be required by mandatory provisions of law.
SECTION 13.9 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 13.10 Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
SECTION 13.11 Securities in a Foreign Currency. Unless otherwise specified
in an Officers' Certificate delivered pursuant to Section 2.3 of this Indenture
with respect to a particular series of Securities, whenever for purposes of this
Indenture any action may be taken by the holders of a specified percentage in
aggregate principal amount of Securities of all series at the time outstanding
and, at such time, there are outstanding Securities of any series which are
denominated in a coin or currency other than United States dollars, then the
principal amount of Securities of such series which shall be deemed to be
outstanding for the purpose of taking such action shall be that amount of United
States dollars that could be obtained for such amount at the Market Exchange
Rate.
47
<PAGE>
All decisions and determinations of the Exchange Rate Agent regarding the
Market Exchange Rate shall, in the absence of manifest error, be conclusive for
all purposes and irrevocably binding upon the Issuer and all Holders.
SECTION 13.12 Judgment Currency. The Issuer agrees, to the fullest extent
that it may effectively do so under applicable law, that (a) if for the purpose
of obtaining judgment in any court it is necessary to convert any sum due in
respect of the principal of, premium, if any, or interest on the Securities of
any series (the "Required Currency") into United States dollars, the rate of
exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required
Currency on the New York Banking Day preceding that on which final judgment is
giving and (b) its obligations under this Indenture to make payments in the
Required Currency (i) shall not be discharged or satisfied by any tender, or any
recovery pursuant to any judgment (whether or not entered in accordance with
subsection (a)), in any currency other than the Required Currency, except to the
extent that such tender or recovery shall result in the actual receipt by the
payee of the full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be payable and (iii)
shall not be affected by judgment being obtained for any other sum due under
this Indenture. For purposes of the foregoing, "New York Banking Day" means any
day except a Saturday, Sunday or a legal holiday in The City of New York or a
day on which banking institutions in The City of New York are authorized by law
or required by executive order to close.
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 date first above written.
EMERSON ELECTRIC CO.
By:
----------------------------
[CORPORATE SEAL] Senior Vice President
Attest:
By:
--------------------------------
Assistant Secretary
THE BANK OF NEW YORK, as Trustee
By:
----------------------------
Name:
Title:
48
Exhibit 4.2
[FORM OF FACE OF [SECURITY]]
[GLOBAL SECURITY]
Unless and until this Security is exchanged in whole or in part for Securities
in definitive form, this Security may not be transferred except as a whole by
The Depository Trust Company, a New York corporation ("DTC" or the
"Depositary"), to a nominee of DTC or by a nominee of DTC to DTC or another
nominee of DTC or by DTC or any nominee to a successor Depositary or a nominee
of any successor Depositary. Unless this certificate is presented by an
authorized representative of DTC 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 in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.]
EMERSON ELECTRIC CO.
[title of Security]
Principal Amount No.
$ CUSIP
EMERSON ELECTRIC CO., a Missouri corporation (the "Issuer"), for value
received, hereby promises to pay to [Cede & Co.] or registered assigns, at the
agency of the Issuer in the City of New York, New York, the principal sum of
DOLLARS on , in immediately available funds in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts, and to pay interest,
semiannually on and of each year (each, an "Interest Payment
Date"), commencing, on said principal sum at said office or agency,
in like coin or currency, at the rate per annum specified in the title of this
[Security], from the most recent Interest Payment Date to which interest has
been paid or, if no interest has been paid, from , until payment of
said principal sum has been made or duly provided for; provided, that payment
of interest may be made at the option of the Issuer by check mailed to the
address of the person entitled thereto as such address shall appear on the
Security register. Each payment of interest in respect of an Interest Payment
Date shall include interest accrued through the day prior to such Interest
Payment Date. The interest so payable on any Interest Payment Date will, subject
to certain exceptions provided in the Indenture referred to on the reverse
hereof, be paid to the person in whose name this [Security] is registered
at the close of business on the or , as the case may be, next
preceding such Interest Payment Date.
Reference is made to the further provisions of this [Security] set
forth on the reverse hereof. Such further provisions shall for all purposes have
the same effect as though fully set forth at this place.
<PAGE>
This [Security] shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by the
Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, Emerson Electric Co. has caused this instrument to
be signed by facsimile by its duly authorized officers and has caused a
facsimile of its corporate seal to be affixed hereunto or imprinted hereon.
EMERSON ELECTRIC CO.
[SEAL]
By:________________________________
By:________________________________
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities described in the within-mentioned Indenture.
Dated: THE BANK OF NEW YORK,
as Trustee
By:_______________________________
Authorized Signatory
<PAGE>
[FORM OF REVERSE OF SECURITY]
EMERSON ELECTRIC CO.
[Title of Security]
This [Security] is one of a duly authorized issue of unsecured
debentures, notes or other evidence of indebtedness of the Issuer (hereinafter
called the "Securities") of the series hereinafter specified, all issued or to
be issued under and pursuant to an indenture dated as of , 1998 (herein
called the "Indenture"), duly executed and delivered by the Issuer to The Bank
of New York, as Trustee (herein called the "Trustee"), 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 Issuer and the holders of the Securities. 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), may be subject to different sinking, purchase or
analogous funds (if any) and may otherwise vary as in the Indenture provided.
This [Security] is one of a series designated as the % [Securities] due of the
Issuer, limited in aggregate principal amount to $ (herein called the
"[Securities]").
[The [Securities] will not be redeemable prior to .][The
[Securities] may be redeemed at the option of the Issuer as a whole, or from
time to time in part, in the amount of $ or any multiple thereof, on any
date after and prior to maturity, upon mailing a notice of such
redemption not less than 30 nor more than 60 days prior to the date fixed
for redemption to the Holders of [Securities] at their last registered
addresses, all as further provided in the Indenture, at the following
redemption prices (expressed in percentages of the principal amount) together in
each case with accrued interest to the date fixed for redemption:
If redeemed on or before , %, and if redeemed during
the twelve-month period beginning ,
Year Percentage Year Percentage
---- ---------- ---- ----------
and thereafter at 100% of their principal amount.]
In case an Event of Default with respect to the [Securities] shall
have occurred and be continuing, the principal hereof may be declared, and upon
such declaration shall become, due and payable, in the manner, with the effect
and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer and the
Trustee, with the consent of the Holders of not less than a majority in
<PAGE>
aggregate principal amount of the Securities at the time Outstanding (as defined
in the Indenture) of all series to be affected (voting as one class), 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 of any supplemental indenture or modifying in any manner the
rights of the Holders of the Securities of each such series; provided, however,
that no such supplemental indenture shall (i) extend the final maturity of any
Security, or reduce the principal amount thereof or any premium thereon, or
reduce the rate or extend the time of payment of any interest thereon, or reduce
any amount payable on redemption thereof or reduce the amount of the principal
of an Original Issue Discount Security (as defined in the Indenture) payable
upon acceleration thereof or the amount thereof provable in bankruptcy, or
impair or affect the rights of any Holder to institute suit for the payment
thereof, or, if the Securities provide therefor, any right of repayment at the
option of the Holder, without the consent of the Holder of each Security so
affected, or (ii) reduce the aforesaid percentage of Securities, the Holders of
which are required to consent to any such supplemental indenture, without the
consent of the Holder of each Security affected. It is also provided in the
Indenture that, with respect to certain defaults or Events of Default regarding
the Securities of any series, prior to any declaration accelerating the maturity
of such Securities, the Holders of a majority in aggregate principal amount
Outstanding of the Securities of such series (or, in the case of certain
defaults or Events of Default, all or certain series of the Securities) may on
behalf of the Holders of all the Securities of such series (or all or certain
series of the Securities, as the case may be) waive any such past default or
Event of Default and its consequences. The preceding sentence shall not,
however, apply to a default in the payment of the principal of or premium, if
any, or interest on any of the Securities. Any such consent or waiver by the
Holder of this [Security] (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of this [Security] and any [Securities] which may be issued in exchange or
substitution herefor, irrespective of whether or not any notation thereof is
made upon this [Security] or such other [Securities].
No reference herein to the Indenture and no provision of this
[Security] or of the Indenture shall alter or impair the obligation of the
Issuer, which is absolute and unconditional, to pay the principal of and any
premium and interest on this [Security] in the manner, at the respective times,
at the rate and in the coin or currency herein prescribed.
The [Securities] are issuable only in registered form, without coupons,
in denominations of $1,000 and any integral multiple thereof, and in book-entry
form. The [Securities] may be represented by one or more Global Securities
(each, a "Global [Security]") deposited with the Depositary and registered in
the name of the nominee of the Depositary, with certain limited exceptions. So
long as DTC or any successor Depositary or its nominee is the registered Holder
of a Global [Security], DTC, such Depositary or such nominee, as the case may
be, will be considered the sole owner or Holder of the [Securities] represented
by such Global [Security] for all purposes under the Indenture and the
[Securities]. Beneficial interest in the [Securities] will be evidenced only by,
and transfer thereof will be effected only through, records maintained by DTC
and its participants. Except as provided below, an owner of a beneficial
interest in a Global [Security] will not be entitled to have [Securities]
represented by such Global [Security] registered in such owner's name, will not
<PAGE>
receive or be entitled to receive physical delivery of the [Securities] in
certificated form and will not be considered the owner or Holder thereof under
the Indenture.
No Global [Security] may be transferred except as a whole by the
Depositary to a nominee of the Depositary. Global [Securities] are exchangeable
for certificated [Securities] only if (x) the Depositary notifies the Issuer
that it is unwilling or unable to continue as Depositary for such Global
[Securities] or if at any time the Depositary ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, and the Issuer
fails within 90 days thereafter to appoint a successor, (y) the Issuer in its
sole discretion determines that such Global [Securities] shall be so
exchangeable or (z) 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 [Securities]. In such event, the Issuer will issue
[Securities] in certificated form in exchange for such Global [Securities]. In
any such instance, an owner of a beneficial interest in the Global [Securities]
will be entitled to physical delivery in certificated form of [Securities] equal
in principal amount to such beneficial interest and to have such [Securities]
registered in its name. [Securities] so issued in certificated form will be
issued in denominations of $1,000 or any integral multiple thereof, and will be
issued in registered form only, without coupons.
The Issuer, the Trustee and any authorized agent of the Issuer or the
Trustee may deem and treat the registered Holder hereof as the absolute owner of
this [Security] (whether or not this [Security] 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
premium, if any, and subject to the provisions on the face hereof, interest
hereon, and for all other purposes, and neither the Issuer nor the Trustee nor
any authorized agent of the Issuer or the Trustee shall be affected by any
notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the
Issuer in the Indenture or any indenture supplemental thereto or in any
[Security], or because of the creation of any indebtedness represented thereby,
shall be had against incorporator, stockholder, officer or director, as such, of
the Issuer or of any successor corporation, either directly or through the
Issuer or any successor corporation, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance hereof and as part of the consideration for the
issue hereof.
The acceptance of this [Security] shall be deemed to constitute the
consent and agreement of the Holder hereof to all of the terms and provisions of
the Indenture. Terms used herein which are defined in the Indenture shall have
the respective meanings assigned thereto in the Indentures.
THE INDENTURE AND THE [SECURITIES] SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPLES THEREOF.
Exhibit 5
EMERSON ELECTRIC CO.
8000 W. FLORISSANT
P.O. BOX 4100
ST. LOUIS, MO. 63136-8506
Harley M. Smith
Assistant General Counsel
And Assistant Secretary
(314) 553-2431
(314) 553-3713 (fax)
November 5, 1998
Emerson Electric Co.
8000 West Florissant Avenue
P. O. Box 4100
St. Louis, MO 63136-8506
Lady and Gentlemen:
I am Assistant General Counsel and Assistant Secretary of Emerson
Electric Co. (the "Company"), and in such capacity I am familiar with the
Registration Statement on Form S-3 to which this opinion is filed as an exhibit
(the "Registration Statement"), which registers under the Securities Act of
1933, as amended (the "Securities Act"), $675,000,000 aggregate principal amount
of Debt Securities of the Company (the "Securities") and also constitutes,
pursuant to Rule 429 under the Securities Act, Post-Effective Amendment No. 1 to
Registration Statement No. 33-62545, which previously registered an additional
$325,000,000 of the Securities.
I have examined originals or copies, certified or otherwise identified
to my satisfaction, of such documents, corporate records, certificates of public
officials and other instruments as I deemed necessary for the purpose of the
opinion expressed herein.
On the basis of the foregoing, I am of the opinion that the Securities
to which the Registration Statement and such Post-Effective Amendment relate
have been validly authorized and, when issued and sold in accordance with the
Indenture, the Underwriting Agreement Standard Provisions and the Pricing
Agreement, which are filed as exhibits to the Registration Statement, and duly
authenticated by the Trustee, will be legally issued, fully paid and
non-assessable and binding obligations of the Company.
I consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
Harley M. Smith
EXHIBIT 12
STATEMENT RE COMPUTATION OF
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratios of earnings to fixed charges of
the Company for the periods indicated. For purposes of computation of the ratio
of earnings to fixed charges, earnings consist of income before income taxes and
cumulative effects of changes in accounting principles plus the amount of fixed
charges. Fixed charges consist of interest expense and that portion of rental
expense deemed to represent interest.
<TABLE>
<CAPTION>
---------------------------------------------------------------------- NINE MONTHS
YEAR ENDED SEPTEMBER 30, ENDED
---------------------------------------------------------------------- JUNE 30,
993 (a) 1994 (a) 1995 (a) 1996 (a) 1997 (a) 1998 (a)
- ---------------------------------- ------------ ---------- ------------ ---------- ---------- ------------
(Dollars in Millions, Except Ratios)
<S> <C> <C> <C> <C> <C> <C>
Earnings:
Income before income taxes and
cumulative effects of changes
in accounting principles...... $ 1,108.8 $1,423.4 (b) $1,457.2 (b) $ 1,611.3 $1,821.7 $ 1,492.3
Fixed charges.................. 171.9 141.8 168.4 182.2 176.5 159.4
---------- --------- --------- ----------
- ----------------------------------
Earnings, as defined........ $1,280.7 $1,565.2 $1,625.6 $ 1,793.5 $1,998.2 $ 1,651.7
==================================
Fixed Charges:
==================================
Interest expense............... $ 133.5 $ 101.9 $ 123.0 $ 132.3 $ 124.2 $ 120.2
==================================
One-third of all rents......... 38.4 39.9 45.4 49.9 52.3 39.2
----------- --------- --------- ---------- ---------- ------------
Total fixed charges......... $ 171.9 $ 141.8 $ 168.4 $ 182.2 $ 176.5 $ 159.4
- ---------------------------------- =========== ======== ========= ========== ========== ============
Ratio of Earnings to Fixed
Charges.......................... 7.5x 11.0x 9.7x 9.8x 11.3x 10.4x
===== ===== ===== ====== ====== =======
.....
</TABLE>
(a)Includes proportionate share of earnings and fixed charges of 50%-owned
equity investees, the distributed earnings of less-than-50%-owned equity
investees, and minority interest in the income of subsidiaries with fixed
charges.
(b)Includes non-recurring items of $192.0 million and $34.3 million in 1994 and
1995, respectively. Excluding these items, the ratio of earnings to fixed
charges would have been 9.7x and 9.4x in 1994 and 1995, respectively.
EXHIBIT 23.2
CONSENT OF KPMG PEAT MARWICK LLP,
INDEPENDENT ACCOUNTANTS
The Board of Directors
Emerson Electric Co.
We hereby consent to the use of our report dated November 3, 1997, on the
consolidated financial statements of Emerson Electric Co. and subsidiaries as of
September 30, 1997 and 1996, and for each of the years in the three-year period
ended September 30, 1997, incorporated herein by reference, and to the reference
to our firm under the heading "Experts" in the prospectus. Our report refers to
a change in accounting for postemployment benefits.
/s/ KPMG PEAT MARWICK LLP
St. Louis, Missouri
November 2, 1998
Exhibit 25
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
-------------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
-------------------------
EMERSON ELECTRIC CO.
(Exact name of obligor as specified in its charter)
Missouri 43-0259330
(State or other jurisdiction o (I.R.S. employer
incorporation or organization) identification no.)
8000 West Florissant Avenue, Station 2431,
P.O. Box 4100
St. Louis, Missouri 63136
(Address of principal executive offices) (Zip code)
______________________
Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
2
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
3
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 3rd day of November, 1998.
THE BANK OF NEW YORK
By: /S/ THOMAS C. KNIGHT
---------------------------------
Name: THOMAS C. KNIGHT
Title: ASSISTANT VICE PRESIDENT
4
<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin ................. $ 7,301,241
Interest-bearing balances .......... 1,385,944
Securities:
Held-to-maturity securities ........ 1,000,737
Available-for-sale securities ...... 4,240,655
Federal funds sold and Securities pur-
chased under agreements to resell... 971,453
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................38,788,269
LESS: Allowance for loan and
lease losses ..............632,875
LESS: Allocated transfer risk
reserve..........................0
Loans and leases, net of unearned
income, allowance, and reserve 38,155,394
Assets held in trading accounts ...... 1,307,562
Premises and fixed assets (including
capitalized leases) ................ 670,445
Other real estate owned .............. 13,598
Investments in unconsolidated
subsidiaries and associated
companies .......................... 215,024
Customers' liability to this bank on
acceptances outstanding ............ 974,237
Intangible assets .................... 1,102,625
Other assets ......................... 1,944,777
-----------
Total assets ......................... $59,283,692
===========
LIABILITIES
Deposits:
In domestic offices ................ $26,930,258
Noninterest-bearing ......11,579,390
Interest-bearing .........15,350,868
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 16,117,854
Noninterest-bearing .........187,464
Interest-bearing .........15,930,390
Federal funds purchased and Securities
sold under agreements to repurchase. 2,170,238
<PAGE>
Demand notes issued to the U.S.
Treasury ........................... 300,000
Trading liabilities .................. 1,310,867
Other borrowed money:
With remaining maturity of one year
or less ......................... 2,549,479
With remaining maturity of more than
one year through three years...... 0
With remaining maturity of more than
three years ...................... 46,654
Bank's liability on acceptances exe-
cuted and outstanding .............. 983,398
Subordinated notes and debentures .... 1,314,000
Other liabilities .................... 2,295,520
-----------
Total liabilities .................... 54,018,268
-----------
EQUITY CAPITAL
Common stock ......................... 1,135,284
Surplus .............................. 731,319
Undivided profits and capital
reserves ........................... 3,385,227
Net unrealized holding gains
(losses) on available-for-sale
securities ......................... 51,233
Cumulative foreign currency transla-
tion adjustments ................... ( 37,639)
-----------
Total equity capital ................. 5,265,424
------------
Total liabilities and equity
capital ............................ $59,283,692
===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot |
Thomas A. Renyi | Directors
Alan R. Griffith |
